Bracton: Thorne Edition: English. Volume 2, Page 177

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Volume 2, Page 177

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[001] the thing, [that is] of the right as to which the confirmation or the acknowledgement
[002] is to be made, and similarly that he to whom the confirmation is made [be in
[003] possession of the thing], for if neither [of them] is, what is done will not be valid.¹
[004] A confirmation may be so made as to depend upon the first gift, as where one says, ‘I
[005] confirm to such a one such a thing (or ‘such a gift’) in so far as it was rightfully
[006] made.’² By such confirmation the first gift, unless it is valid and complete in itself,
[007] will not become valid, for such words so narrow and restrict the confirmation that
[008] it cannot supply any defect, which is not so in a simple confirmation, where no inquiry
[009] is made³ as to whether the gift was rightful or not, complete or incomplete, or
[010] wholly void. It is also clear that a confirmation is a kind of ratification, [for] ⁴a special
[011] confirmation ought to relate back to the time the gift was drawn up, as do other
[012] ratifications of transactions,⁵ [but] ⁶though it may be supported by a precedent
[013] gift,⁷ it sometimes suffices by itself if it contains the gift, as where one says, ‘I have
[014] given and confirmed.’ The effect of a confirmation is that he who confirms another's
[015] gift, as that of an ancestor or a stranger, [or confirms his own, as where he makes a
[016] gift under age, or while of unsound mind, or when not sui juris, or while under
[017] duress, and confirms it when he is of full age, of sound mind, sui juris, or free of
[018] duress,] may never invalidate it, ⁸whether the gift is complete or not, valid or invalid.
[019] What was said of advowsons, which are among the appurtenances of one's
[020] own property, is applicable to servitudes, which are appurtenant to the free
[021] tenement of one person in the property of another, as where a right of pasturing,
[022] or⁹ a right of way and the like is granted [by A.] to a man [B.] and his heirs;
[023] though he [B.] does not use it in his lifetime, his heirs, included in the gift, may do
[024] so [after his death]. And so may [his] assigns and donees if such are mentioned in
[025] [A.'s] gift, by force of the modus of the gift;¹⁰ if they are not they cannot: the donor
[026] [B.] could not transfer a use he did not have. But if they use for a long time through
[027] the negligence and acquiescence of the first donor [A.], or if his confirmation or
[028] that of his heirs is secured their use gains strength by force of the confirmation.

Of gifts inter mortuos¹¹ and mortis causa.

[030] Among other gifts there is the gift mortis causa, which is confirmed by death, of
[031] which gift there are ¹²three kinds. The first, when one [makes a gift] undisturbed
[032] by any fear of immediate danger but moved solely by the common mortality of
[033] man. The second, when one moved by the imminent danger of death makes a gift
[034] in such a way that it at once becomes the property of the recipient. The third,
[035] where one moved by danger does not give so that it immediately becomes the
[036] property of the recipient, but so that it will become such

Notes

1. Supra 175; ‘de qua fieri debeat’

2. P. and M., ii, 342, n. 4; infra iv, 217

3. ‘confirmatione,’ as V, but no MS. authority; ‘inquiritur’

4-5. C. 5.16.25.2: ‘specialis confirmatio ad illud tempus referatur quo donatio conscripta sit, sicut et alias ratihabitiones negotiorum’

6-7. ‘licet iuvare ... praecedente,’ from lines 13-14

8. Om: ‘Item si ... confirmaverit heres,’ a connective

9. ‘vel’

10. Supra 159, 161, 162

11. sic

12-13. D. 39.6.2; Woodbine in Yale L. Jour., xxxi, 837: infra v

Of gifts inter mortuos11 and mortis causa.

Notes

Of gifts inter mortuos¹¹ and mortis causa.