Bracton: Thorne Edition: English. Volume 2, Page 66

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Volume 2, Page 66

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[001] or may not make a [valid] gift depending upon the circumstances. I answer in
[002] neither case is the gift valid as long as the donor is in prison, [not] because he makes it
[003] under coercion [but] because he is not his own master, and one not his own master
[004] will not be the master of the things¹ which would otherwise be his. Generally he who
[005] is possessed by others can himself possess nothing,² and as one in bondage can
[006] possess nothing, since he is himself possessed, so a man possessed by the enemy or
[007] held captive can possess nothing. But when one so held regains his natural freedom,
[008] that is, when he is again made his own master, he may either ratify or revoke what
[009] has been done; if he subsequently approves it, by not at once revoking the gift
[010] or by taking homage and³ service, it is good.

A second classification of gifts: some are simple and absolute, others conditional or subject to a modus.

[012] Gifts may be classified in another way, that is, some are simple and absolute,
[013] others conditional, others subject to a modus.⁴ [[Some] are made to one, [others] to
[014] several, [together] or in succession.⁵ [Of conditional gifts], some are [single, others
[015] with] several conditions attached.⁶ [Of gifts], some are of a thing given in maritagium,
[016] some of a thing given to men of religion, some of a thing given to bastards,⁷
[017] some are of a thing given in fee-farm, some of a thing given for life, no matter in
[018] what way, some of a thing granted for a term of years, [though] it is a grant and not a
[019] gift.] A gift may be said to be simple and absolute where no condition or modus is
[020] attached, for that is said to be given simply which is given without qualification,⁸
[021] as where it is said ‘I give to such a one so much land in such a vill for his homage and
[022] service, to have and to hold to him and his heirs of me and my heirs, he and his heirs
[023] rendering thence to me and my heirs so much a year at such terms for every service
[024] and custom and secular demand (so that the thing given may be certain and also
[025] the services and customs owed the lord, though the others tacitly remitted are uncertain)
[026] and I and my heirs will warrant, acquit and defend the aforesaid, such a
[027] one, and his heirs against all men by the aforesaid service.’ In this way the donee
[028] acquires dominion by the causa of gift⁹ and his heir after him by the causa of
[029] succession, for he acquires nothing by the gift made to his ancestor since he was not
[030] enfeoffed with the donee.¹⁰ By the phrase ‘to such a one and his heirs,’ the word
[031] ‘heirs’ being taken broadly¹¹ [to include the heirs] of heirs,¹² all heirs are included,
[032] near and remote, present and future. But nevertheless one of them, or several
[033] who are as one and are nearer, are preferred to the more remote, as was said above

Notes

1. ‘earum’

2. D. 41.2.23.1; 50.17.118; supra 52, infra 88, 137, iii, 85

3. ‘et,’ as 84

4. Supra 49, 50, 57

5. Supra 54, infra 70

6. Infra 72

7. Infra 75

8. Infra 106, 108, 143

9. Infra 157, 173

10. Infra 68

11. ‘large,’ all MSS.

12. Infra iii, 278