Bracton: Thorne Edition: English. Volume 2, Page 62

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Volume 2, Page 62

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[001] To which the person summoned may answer that, although the gift had an invalid
[002] beginning, the said B. subsequently ratified and confirmed it before honest men,
[003] and thus if, having changed his mind, he afterwards [seeks to impugn] his deed,
[004] which he made¹ his by his ratification and confirmation, that ought not to harm
[005] him, since it ought to suffice that he once wished it.²

That the thing given be certain.

[007] ³It is also necessary that a thing certain be comprised in a gift, for if the thing
[008] is uncertain there is no gift. [The thing must be certain though when the gift is to
[009] take effect may be uncertain, as where one says, ‘I will give you such a thing when
[010] it falls to me after the death of such a one, my ancestor,’ or ‘when something is
[011] done or not done,’ or ‘when it occurs or does not occur.’]⁴ And as the thing
[012] given or promised must be certain, so the thing given in exchange or promised in
[013] return must be certain, as homage and a certain service,⁵ [and thus a gift falls into
[014] one of the four innominate contracts,] as where I say ‘I give you that certain
[015] thing for your homage and service,’ the services must be certain and expressed in a
[016] writing [or without a writing,] and having been so expressed all other services
[017] and customs are remitted.⁶ If a charter is not made, recourse must be had to
[018] common usage, that such and so much service be done as [is due from] that much
[019] land in the same vill [or] of the same fee.⁷ If a dispute arises as to usage, recourse
[020] must be had to an inquest of the country or to the grand assise. ⁸If a charter is
[021] made the gift will be more secure,⁹ for a gift may be proved more easily and more
[022] effectively by a writing and instruments than by witnesses or suit. But of charters
[023] and the credibility of instruments more will be said below.¹⁰ It is also necessary
[024] that certain words be used, as suitable to a gift as to a ¹¹stipulation, as where I say,
[025] ‘Will you give me a hundred?’ and you reply, ‘I will give,’ for a question is of no
[026] effect unless followed by an answer appropriate to it, that is, ‘I will give.’ From
[027] such a question and answer an obligation at once arises.¹² A gift is of no effect unless
[028] there is mutual consent and agreement on the part of both the donor and the
[029] donee, that is, that the donor have the animus donandi and the donee the animus
[030] recipiendi,¹³ [A bare statement in an account and a nude pact do not make
[031] anyone a debtor.]¹⁴ [for] if I say ‘I give you such a thing’ and have no intention
[032] of giving it (and do not begin it by livery) the gift fails, as where I say, ‘I give
[033] you that thing’ and do not wish¹⁵ to hand it over, or suffer you to take it with you,
[034] or if it is a tree that is given, to cut it down, the gift is without effect, because the
[035] donor did not fully consent. ¹⁶There must also be no mistake in the thing given,
[036] for if the donor

Notes

1. ‘fecit’

2. D. 39.3.9.1; 43.3.1.14

3. Continued from 59; the requirements of a valid gift

4. Infra 71

5. Infra 66, 107

6. Infra 66, 67, 112, 119

7. Infra 114

8-10. ‘Item si scriptura ... plenius dicetur infra,’ from lines 26-29; infra 108 ff.

9. ‘validior,’ all MSS.

11-12. Inst. 3.15. pr.; 3.19.5; infra 284-5

13. Infra 130

14. D. 39.5.26; Azo, Summa Cod. 8.53 no. 6

15. ‘nolim,’ OB; ‘nolui.’ MSS.

16. New paragraph