Bracton: Thorne Edition: English. Volume 2, Page 182

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 182

Next

Go to Volume: Page:

[001] an unspecified thing may not be claimed. A thing may be certain because its size
[002] is specified, as where one says, ‘I will sell you a carucate (or ‘virgate’) of land’ or¹
[003] [Also because the number is specified, as ‘I will sell you so many carucates’ (or
[004] ‘virgates’ or ‘acres’) and the like, or ‘[land] which is worth so much.’] ‘all the land
[005] such a one had’ or ‘of which such a one was seised on the day he died’ or ‘all the
[006] land within such boundaries’ and the like. ²A purchase and sale is contracted when
[007] the contracting parties agree on the price,³ provided the seller has received something
[008] in the name of earnest,⁴ ⁵for what is given by way of earnest is evidence that a
[009] purchase and sale has been concluded. If a writing is to be made, the purchase and
[010] sale will not be complete until that has been delivered to the parties and executed.
[011] So long as there is neither earnest nor writing,⁶ nor any delivery made, ⁷there will
[012] be room for reconsideration and the contracting parties may withdraw from the
[013] agreement without penalty.⁸ ⁹But if the price has been paid, or part of it, or delivery
[014] made, the purchase and sale will be complete and neither of the parties may
[015] afterwards withdraw from the contract,¹⁰ on the ground that the price was not
[016] paid, in part or in full, but the seller may proceed by a suitable action to recover
[017] what he is owed of the price, not to regain the thing itself. Nor can he place himself
[018] in seisin of it without committing a disseisin, unless a pact put into the agreement
[019] at the outset, a modus or condition, so provides, as explained more fully above in
[020] [the portion] on gifts¹¹ and as will be discussed below [in the portion] on disseisin.¹²
[021] ¹³If the parties agree that the thing be bought at a price to be fixed by another,
[022] unless he, the person named,¹⁴ fixes the price, as where¹⁵ he is either unwilling or
[023] unable to fix it, the sale will be void on the ground that no price was fixed or
[024] established.¹⁶ ¹⁷When something by way of earnest has been paid before delivery
[025] and the buyer¹⁸ regrets his purchase and wishes to withdraw from the contract,
[026] let him forfeit what he gave; if it is the seller, let him give the buyer double what
[027] he received by way of earnest.¹⁹ ²⁰When a seller sells a thing as sound and without
[028] blemish which afterwards is found to be maimed or unsound, and the buyer can
[029] prove it to have been so at the time of the contract, the seller will be bound to take
[030] his thing back. But if it was sound and uninjured at the time of the contract he
[031] will not be so bound, no matter what has happened to it afterwards.²¹ When one
[032] sells an immovable, as land, and in the course of selling promises in return that the
[033] thing is free when it is subject to a servitude,²² or not burdened when it is, or
[034] unencumbered when it is, the contract is not on that account rescinded,

Notes

1. ‘vel,’ as Fleta, ii, ca. 58; om. ‘huiusmodi’

2-3. Inst. 3.23. pr.: ‘Emptio et venditio contrahitur simulatque de pretio convenerit, quamvis nondum pretium numeratum sit ac ne arra quidem data fuerit,’; Glanvill, x, 14: infra nn. 9-10

4. Glanvill, x, 14; Inst. 3.23.pr.; ‘impune recedere eis concedimus nisi iam arrarum nomine aliquid fuerit datum.’

5-6. Inst. 3.23. pr. (with alterations); G’terbock, 144-5, P. and M., ii 208

7-8. Ibid.

9-10. Glanvill, x, 14: ‘Perficitur autem emptio et venditio cum effectu ex quo de pretio inter contrahentes convenit, ita tamen quod secuta fuerit rei emptae et venditae traditio, vel quod pretium fuerit solutum totam sive pars, vel saltem quod arrae inde fuerint datae et receptae.’; reading ‘vel’ for ‘et,’ as Gl.; Fleta, ii, ca. 58: ‘et’

11. Supra 69, 71

12. Infra iii, 145

13-16. Inst. 3.23.1; supra 71

14. ‘talis,’ as Fleta

15. ‘ut si’

17-19. Inst. 3.23. pr.; ‘venditor’

18. ‘emptor,’ as Fleta, ii, ca. 58

20-21. Glanvill, x, 14

22. D. 41.1.20.1: supra 127