Bracton: Thorne Edition: English. Volume 2, Page 148

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Volume 2, Page 148

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[001] not, tainted or not,¹ as to all of which he must examine and inquire diligently
[002] since ignorance does not excuse him and contracting parties are permitted to
[003] deceive each other.² [But this last applies to sales rather than gifts, as will be
[004] explained more fully below [in the portion on] purchases and sale.]³ When the
[005] chief lord has put himself in seisin by virtue of an agreement of this kind, he may
[006] not retain the thing unless he pays as much as anyone else is willing to give,⁴
[007] [This is tacitly understood though not set out in the instrument. If he refuses
[008] to do so his tenant may well do what he wishes, provided the thing is first offered
[009] to the lord in accordance with the condition.] ⁵unless the lord and tenant have
[010] agreed beforehand on a certain price. A donor by special agreement, contrary
[011] to common right, may improve his position by the causa of gift, as where
[012] he makes a gift for homage and service, [and whereas] to homage belong warranty
[013] and defence and escambium if he cannot warrant, by a special agreement the lord
[014] may be excused [from these] if it is specially agreed in the gift that he not warrant.⁶
[015] And thus a tenant may freely renounce, contrary to common right, what was
[016] introduced for his protection by the law.⁷ And conversely, the donee may improve
[017] his position by a special agreement contrary to common right, as where, though
[018] wardship and marriage belong to homage and royal service, by special agreement
[019] the tenant may free his heirs and his tenement [by providing] that the chief lord
[020] not have the wardship and marriage,⁸ if it is so specially agreed, contrary to
[021] common right. And so a tenant may improve his position and the lord worsen his
[022] own. Hence when the heirs of the tenant [C] have once been quit in the life of
[023] [their] chief lord [B] or his heirs, though the heirs of [such] chief⁹ lord are within
[024] age and in the wardship of their own lord [A], he [A] can claim no right in the
[025] wardship or marrige of the heirs of the sub-tenant [C], because, if he claims he
[026] can do so only in the name of the heir of his feoffee [B], who, were he of full age,
[027] could not claim contrary to the agreement; consequently neither can those who
[028] sue in his name. One [argument] might bar the claim, if both heirs are within age,
[029] and if the heir of the sub-tenant [C] had¹⁰ never been quit, for if the chief lord
[030] claims, and the agreement is excepted against him, and in proof of the exception
[031] a charter or other instrument is produced, he may make the replication that the
[032] heir of his tenant [B] cannot reply to the exception and the charter, and so he
[033] will prevail for that time. But quaere whether because of this the charter ought to
[034] remain void. It is submitted that

Notes

1. D. 50.17.19: ‘Qui cum alio contrahit vel est vel debet esse non ignarus condicionis eius.’

2. D. 4.4.16.4: ‘in pretio emptionis et venditionis naturaliter licere contrahentibus se circumvenire’

3. Infra 182, but no explanation appears

4. Supra 142

5. Om: ‘Et haec vera sunt,’ a connective

6. Supra 118, infra iv, 220

7. C. 2.3.29.1: ‘omnes licentiam habere his quae pro se introducta sunt renuntiare,’: supra 74

8. Supra 67, 117, 146, infra 248, iv, 318

9. ‘capitalis,’ all MSS.

10. ‘habuit’