Harvard Law School Library

Bracton Online -- English

Previous   Volume 2, Page 145  Next    

Go to Volume:      Page:    




[001] all the more remote heirs are excluded, as on the non-performance of a condition,
[002] and it will always be a free tenement and never a fee.1 2Sometimes [only] the
[003] person of the donee is bound by the gift, sometimes the donee and the thing itself.
[004] The donee, as where a donor says, ‘I give you such a thing that you find me in
[005] necessaries;’ by this the donee is bound but not the thing, [for] the thing is not
[006] bound to find the necessaries, only the donee.3 But if he puts it thus, ‘that you
[007] find me in necessaries out of the thing given,’ the thing and the person are then
[008] bound; not to the extent that the donor may reclaim the thing but that from it
[009] his necessaries be found him. Just as where it is agreed between donor and donee
[010] at the making of a gift that the donee not do something and he does do it, he [the
[011] donor] may not take back the thing given but [only] sue on the agreement to
[012] recover his damages.4 If it is further provided in the agreement that if he does not
[013] do as agreed, or does contrary to what it is agreed he would or would not do, that
[014] it be permissible for the donor or his heirs to put himself into the thing given, to
[015] hold to himself and his heirs as before, or for life, then the thing is bound as well
[016] as the donee.5 In that case, if the donor puts himself in seisin by force of the agreement
[017] and the donee claims by the assise, an exception based on the agreement will
[018] bar him. If the donor is unable to put himself into seisin he will have an action on the
[019] agreement for recovering seisin. If it is put thus, ‘I give you such a thing to have
[020] to yourself and your heirs or to whomsoever you wish to give or assign except
[021] men of religion and jews,’ both the thing and the person are bound: the thing, that
[022] it not be given to such persons, the person, that he not give it to such. Thus the
[023] gift will not be free with respect to the prohibited persons but free as to all others.
[024] Whether the donee retains it or gives it over, I do not believe that the donor, though
[025] he can sue on the agreement for damages, can reclaim the thing by force of it, unless
[026] it is agreed that if anything be done to the contrary the donor may put himself into
[027] seisin no matter into whose hands the thing has come contrary to the prohibition.
[028] Then, if the donee gives the thing over completely free of any restriction, no one excepted,
[029] the thing will still be bound, that it not be given, because it passes with its
[030] burden,6 and if the first donor, by force of the agreement between himself and his
[031] feoffee, enters and ejects the last feoffee, the latter, when he seeks restitution by the
[032] assise, will be barred by an exception based upon the agreement, though he is not
[033] bound by an agreement made between others,7 [for] though he is not bound
[034] [personally], he is bound because he holds a burdened thing.



Notes

1. Supra 68-9

2. New paragraph

3. Supra 69

4. Supra 69, 71; cf. supra 142, infra 147

5. Ibid.

6. Infra 147

7. D. 2.14.27.4: ‘ne conventio in alia re facta aut cum alia persona in alia re aliave persona noceat.’


Contact: specialc@law.harvard.edu
Page last reviewed April 2003.
© 2003 The President and Fellows of Harvard College