Bracton: Thorne Edition: English. Volume 2, Page 126

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Volume 2, Page 126

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[001] the further question, whether the donee has used some part of it, is not to be
[002] asked, for that inquest ought to be for [the donor and] the donee ought to obtain
[003] nothing by it. ¹We must always see what the principal object of the gift is, whether
[004] land, an estate or manor, or a house, and then determine what sort of livery ought
[005] to be made and how the thing should be used.> or because the time of harvest or
[006] grape gathering² has not yet come, [nevertheless] such seisin suffices for a free
[007] tenement.³ [If he gathers unripe fruit⁴ or cuts down trees, these are not considered
[008] issues since they are to his loss rather than his profit.] The same may be said of
[009] the pasturing of cattle, that it suffices for seisin, even seisin to the number owed,⁵
[010] if he has the view and the affectus possidendi,⁶ though he does not immediately put
[011] in a beast.

[If livery is not made].

[013] If livery is not made, long and peaceful seisin and long use, though of another's
[014] property, suffices for livery, to the extent of seisin and a free tenement, as where
[015] one enters into a vacant thing possessed by no one, as into an inheritance not yet
[016] taken up, for long possession suffices for livery and generates right.⁷ Where a
[017] gift has been made and the donee puts himself in seisin without livery, on his own
[018] authority, without the donor or his procurator or letters and a messenger, such
[019] seisin is valueless, [for before livery a donor may change his mind, since the gift is
[020] incomplete, and retain possession corpore and animo,]⁸ and if the donee keeps
[021] himself in possession the assise of novel disseisin lies for the lord. But if, being of
[022] sound mind though enfeebled in body, he afterwards ratifies the gift and approves
[023] such seisin it is cured by the ratification.⁹ ¹⁰The bare will of the donor suffices for
[024] the livery of a corporeal thing¹¹ to another, the [donee's] causa possidendi being
[025] changed, provided the change is accompanied by some ceremony in order that proof
[026] may not¹² fail, as where one lets or grants a thing to another for a term of life or
[027] years and afterwards sells or gives it to him; though he did not at first hold it by
[028] that causa, since the lord permits it to remain in his hands for that (or some other)
[029] causa it is made his.¹³ And so if he holds it by no preceding justa causa, ¹⁴as where
[030] one is in possession of another's property by intrusion or disseisin and the owner
[031] wishes it to be his, it will be his, though the true lord was not in possession.¹⁵
[032] For it is taken [to be] by the will of the lord, as though by him and by his hand,
[033] that [the thing] comes to the detainor, [that is], possession and dominion.

[What he who gives livery transfers].

[035] It is clear that he transfers ¹⁶to the taker what lies with him who transfers, as
[036] where one

Notes

1. New paragraph

2. D. 2.12.1. pr.: ‘messium vindemiarum tempore’

3. ‘sufficit talis seisina quoad liberum tenementum,’ from 125, line 27; infra 159, iii, 125

4. D. 7.1.12.5: ‘fructos maturos’

5. Reading: ‘etiam seisinam [ad] numerum debitum;’ infra 136, 160

6. Supra 125, infra 159, iii, 165, 168, 173, 177

7. Infra 158

8. Infra 137

9. Infra 129, 137

10. New paragraph

10-13. Inst. 2.1.44; D. 41.1.9.5: ‘Interdum etiam sine traditione nuda voluntas domini sufficit ad rem transferendam, veluti si rem quam commodavi aut locavi tibi aut apud te deposui vendidero tibi: licet enim ex ea causa tibi eam non tradiderim eo tamen quod patior eam ex causa emptionis apud te esse, tuam efficio’; supra 104, infra 128

11. ‘de re corporali’

12. ‘non,’ supra 104

14-15. D. 41.1.21.1: ‘Si rem meam possideas et eam velim tuam esse, fiet tua, quamvis possessio apud me non fuerit.’; supra 104, infra 174

16-18. D. 41.1.20 pr.: ‘Traditio nihil amplius transferre debet vel potest ad eum qui accipit quam est apud eum qui tradit. Si igitur quis dominium in fundo habuit, id tradendo transfert. Si non habuit ad eum qui accipit nihil transfert.’