Bracton: Thorne Edition: English. Volume 2, Page 67

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 67

Next

Go to Volume: Page:

[001] [in the portion] on succession.¹

[Gifts subject to a modus].

[003] ²He may enlarge his gift and make strangers³ quasi-heirs, though in truth they are
[004] not heirs at all, as where he says ‘to have and to hold to such a one and his heirs or to
[005] whomsoever he wishes to give or assign, and I and my heirs will warrant that land
[006] to him and his heirs, or to him to whom he gives or assigns and their heirs, against all
[007] men.’⁴ Here, if the donee gives or assigns the land [and dies], or his heirs fail, the
[008] donor and his heirs will begin to stand in the place of the donee and his heirs, and will
[009] be taken as heir of the donee with respect to warranting the assignees and their heirs,
[010] by force of the clause placed in the charter of the first donor,⁵ though this would not
[011] be so had no mention been made of assigns in the first gift.⁶ As long as the first donee
[012] or his heirs survive, however, they and not the first donor are bound to warrant.⁷
[013] ⁸<At the outset, at the inception of his gift, the donor may well impose a law upon
[014] it and by his will disburden the thing given to the advantage of the donee and to
[015] the contrary of what the law of the land would ordinarily require, provided it is
[016] not to the prejudice of others,⁹ to whom nothing in their agreement extends, as
[017] where he gives land for a lesser service than he holds it of his own lord and
[018] feoffor, provided he can warrant his act out of what he retains, lest the chief lord,
[019] though the land given remains burdened in his favour,¹⁰ be prejudiced with respect
[020] to his service.¹¹ He may disburden the land given to his own prejudice and that of
[021] his heirs and remit for himself and his heirs what is his,¹² either service or customs,
[022] of whatever kind.¹³ This remission suffices because he once willed it,¹⁴ for ¹⁵nothing
[023] is more in accord with natural equity than to make effective the will of a lord wishing
[024] to transfer his property to another,¹⁶ and [because] once that to which the donee is
[025] bound has been expressed in a charter of gift everything else is taken to be remitted.¹⁷
[026] Thus what is stated is harmful, what is omitted is not;¹⁸ a charter relieves from burden
[027] which does not burden expressly.¹⁹ [Conversely], a donor may burden the thing
[028] given to a greater or lesser extent by service and servitudes [added] with the consent
[029] of the donee,²⁰ if²¹ no one is prejudiced except the donee and his heirs, since both so
[030] wished when the gift was first made, because volenti non fit injuria.²² Here what is
[031] expressed is not harmful to the donor but to the donee. Thus the modus of the gift
[032] and the agreement²³ sometimes benefits the donor, sometimes injures him, and
[033] conversely with respect to the donee, it is sometimes to his advantage, that he not
[034] give or not do, sometimes to his disadvantage, that he give or do.>²⁴ ²⁵<Modus and
[035] condition are of many kinds, [for] we must always adhere to that upon which the
[036] parties have agreed, though contrary to what the law would provide, if it is not to
[037] the prejudice

Notes

1. Infra 184 ff.

2. The portion infra n. 25 belongs here

3. ‘alienos’

4. Infra 117; Bailey in Camb. L. Jour., viii, 277

5. Infra 118

6. Infra iv, 219

7. The portion infra 70, n. 7 belongs here

8. Supra i, 375

9. Infra 106, 149

10. Infra 78, 143, 146

11. Magna Carta (1217) ca. 39; (1225) ca. 32; infra iii, 37

12. Om: ‘servitium’

13. Infra 117, 148

14. D. 39.3.9.1

15-16. Inst. 2.1.40; D. 41.1.9.3; Woodbine in Yale L. Jour., xxxi, 837

17. Supra 62, 66, infra 112, 119

18. D. 50.17.195; D. 35.1.52; Dial. of the Exch., 91: ‘expressa nocent, non expressa non nocent.’

19. Infra 112

20. Infra 78, 115 146, 147

21. ‘si’ for ‘sic’

22. Drogheda, 52, 175, 277, 407: infra 149, 156

23. ‘conventio,’ as infra 74

24. Reading: ‘et e converso in persona donatarii, quandoque ... vel faciat’

25. This portion belongs supra n. 2