Bracton: Thorne Edition: English. Volume 2, Page 137

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Volume 2, Page 137

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[001] So if one hands over the keys of a wine cellar¹ or those of warehouses to a lord or
[002] his procurator, the wines and the goods are taken to be transferred.² ³If the lord
[003] acts under a mistake but the procurator does not, the lord nevertheless acquires
[004] possession; conversely, if the procurator so acts but the lord does not, he acquires
[005] it nonetheless,⁴ for it suffices if one does not err. If both act under a mistake it
[006] will be otherwise, for he who errs does not consent.⁵ ⁶Whatever a bondsman acquires
[007] rightfully the lord acquires, but what he takes by his wrongful acts does not fall
[008] into the lord's possession since such things are not acquired by reason of his
[009] peculium.⁷ ⁸Just as possession may be acquired through a procurator so it may be
[010] transferred. ⁹If one orders possession to be transferred to another by his procurator
[011] and the donee puts himself into seisin on his own authority, without resort
[012] to the procurator, though it be vacant he will not come into possession rightfully,¹⁰
[013] for though the donor could not revoke the gift after livery, he may do so before;¹¹
[014] the gift will therefore be in suspense until he ratifies or revokes it, though it will
[015] be good whether he ratifies it expressly or tacitly: expressly, by saying that he
[016] wishes it; tacitly, by not revoking it in his lifetime.¹² ¹³If a friend of the vendor
[017] instructed to place the donee in possession does so after the donor's death, but
[018] before he knew of it, without opposition from the heirs, possession will be properly
[019] transferred.¹⁴ But if he does so knowing the donor to be dead or knowing the heirs
[020] do not wish it, the livery will not be properly made.¹⁵ If the heirs merely pretend
[021] [they were opposed] it will be otherwise. ¹⁶It is said above at the beginning,¹⁷
[022] ‘with the support of right etc.,’ that unless there is the support of right one is not
[023] taken to possess. [One may not possess] though he stands upon a thing corpore and
[024] animo because of the thing, which cannot be possessed, as a sacred or holy thing,
[025] which no one may possess, whether he is ignorant of its character or not and though
[026] he contemns all religion,¹⁸ since it is solely the property of God.¹⁹ Also because of
[027] the [the nature of the thing], as a free man, who can in no way be possessed by one
[028] who knows him to be free, though he may by one who believes him to be a bondsman;
[029] his own, not another's.²⁰ Nor may one captured by the enemy possess anything, no
[030] more than may a bondsman, because he is possessed by others.²¹ Hence, since he
[031] possesses nothing, it follows that he cannot give or transfer anything to another,
[032] nor make what he does not have the property of the taker;²² nor is anything he does
[033] valid while he is within the enemy's power.

Where a gift of a single thing is made to several, together or successively.

[035] Enough has been said above of how and by what persons possession [is acquired,
[036] and how it] may be retained.²³ It remains to be seen what the law is if a gift is made of
[037] one and the same thing to several,

Notes

1. ‘claves cellulae vinariae,’ as D. 41.2.1.21

2. D. 41.2.1.21; 41.1.9.6; supra 128

3-4. D.41.2.34.1

5. D. 2.1.15; infra 149, 174; Woodbine in Yale L. Jour., xxxi, 839

6-7. D. 41.2.24; ‘apprehenduntur’

8. New paragraph

9-10. D. 41.2.33

11. Supra 126

12. Infra 158

13-15. D. 41.2.33

14. Cf. supra 133

16. New paragraph

17. Supra 121

18. D. 41.2.30.1

19. Supra 40, 58, infra iii, 40, 136

20. ‘non si alienum’; D. 41.2.1.6; supra 136

21. D. 41.2.23.1; supra 52, 66, 88, infra iii, 85

22. Supra 52, 66, 88, 103, 127

23. Supra 124-37