Bracton: Thorne Edition: English. Volume 2, Page 63

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Volume 2, Page 63

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[001] has one thing in mind and the donee another,¹ the gift fails because of the lack of
[002] agreement, and that will be so whether the disagreement is in kind, number [or]
[003] quantity. In kind, as where one says, ‘I give you such a manor’ and the donee
[004] understands another; although he takes seisin he acquires nothing. In number,
[005] as where one gives ten and the other understands twenty; though the greater
[006] number includes the lesser the gift is invalid, because both do not agree to a certain²
[007] number. [But error by the donee will [not always] be fatal, [for] what if one gives ten
[008] and the donee agrees to five? The gift is good, for both agree to the smaller number.
[009] It is not so in the first case, for there the donor does not agree to the greater; here
[010] he consents to both, if to the greater, consequently to the smaller, but not conversely.]
[011] In quantity, as where one says, ‘I give you ten pounds worth of land in
[012] such a manor,’ which is worth twenty pounds, and the donee occupies the whole;
[013] the gift is invalid because the donor does not agree to twenty librates. It is otherwise
[014] if he says, ‘I give you such a manor for ten pounds worth of land’ when it is
[015] worth twenty; the gift is good. If the donor says, ‘I give you ten acres in such a
[016] place’ and the donee understands ‘twenty,’ the gift is invalid, as above, but what
[017] if the donee understands ten when the donor gives ten but occupies twenty? The
[018] gift is good, for there is here no error only a wrongful taking that may be corrected
[019] as to the surplus. If the donor says, ‘I give you so much land for ten pounds worth
[020] of land’ and there are twenty pounds worth there, the gift is good, since neither
[021] errs or is deceived, ³<for though there is a mistake in value there is none as to the
[022] thing.> If the donor says, ‘I give you ten pounds worth’ and the donee agrees to
[023] five, the gift is valid, for there is no harmful error since both agree to the same
[024] number, one who consents to ten necessarily agreeing to five, a greater number
[025] including a lesser.⁴ And finally, it must be noted that ⁵if there is agreement as to
[026] the thing transferred, though none as to the cause of giving and receiving, an
[027] error of that kind is not fatal, as where I hand you a sum of money or some other
[028] thing [as a gift] and you accept it as a loan, it is settled that the property passes
[029] to you.⁶ ⁷In some gifts it is requisite that the consent of persons other than the
[030] donor and donee be secured, as where an archbishop, bishop, abbot or prior, a
[031] rector of churches, a syndic or a procurator makes a gift, the consent of all those
[032] who have an interest is required, as that of the king and the chapter

Notes

1. Inst. 3.19.23: infra 174

2. ‘in certum’

3. Supra i, 374

4. D. 45.1.1.4; 45.1.83.3; 50.17.110

5-6. D. 41.1.36; ‘Cum in corpus quidem quod traditur consentiamus, in causis vero dissentiamus, non animadverto cur inefficax sit traditio ... nam si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire ...’; ‘creditam,’ as D.; G’terbock, 113

7. New paragraph