Bracton: Thorne Edition: English. Volume 2, Page 64

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Volume 2, Page 64

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[001] or convent.¹ ²It is also necessary that livery of the thing follow the gift, and³ do
[002] so in the lives of the donor and donee, otherwise it will be regarded as a nude
[003] promise rather than a gift,⁴ and an action no more arises out of a nude promise
[004] than out of a nude pact.⁵ An incomplete gift is of no effect, neither the execution of
[005] a charter nor the taking of homage with every ceremony observed, unless seisin
[006] and livery follow during the life of the donor;⁶ hence if the donee intrudes himself
[007] after the donor's death and is ejected at once, or even after a time, he will not
[008] recover by the assise of novel disseisin, nor will the heir of the donor be bound to
[009] take his homage, though [the gift] was made by his ancestor. How by liveries and
[010] usucapions the dominion of things is transferred⁷ will be explained more fully
[011] below in the title on the acquisition of possession.⁸ ⁹And because agreements,
[012] conditions, pacts and limitations of various kinds, if at once put into them¹⁰
[013] become parts of gifts, they impose a law upon the gift, shape it,¹¹ give an exception
[014] to the donor,¹² bind the persons of the contracting parties,¹³ burden the thing
[015] given and accompany it as it passes from person to person.¹⁴ But if added to them
[016] after a time they are in no way contained in them, though they sometimes give
[017] rise to an action, sometimes to an exception.¹⁵ Thus the gift is contracted as though
[018] I say ‘I give that you do.’ The matters dealt with above may be concisely expressed,
[019] as may be seen from these verses:
[020] By a thing, words, writing, consent, traditio
[021] and conjunction pacts take on their vestments.¹⁶

That a gift be free and not extorted.

[023] A gift must be free, not made under compulsion or extorted by duress,¹⁷ [and thus]
[024] if one when required acknowledges his charter and gift but excepts that it ought
[025] not to be valid because made under duress and compulsion, in time of war or at
[026] some other time, the gift will be revoked, provided he makes his protest as soon
[027] as he has escaped from the force and coercion. If it was exerted in time of war,
[028] let him cry out against it at once, as soon as the war is over, otherwise he prejudices
[029] himself forever, since by saying nothing he is presumed to acquiesce,¹⁸ as among
[030] the pleas which follow the king in the nineteenth year of king Henry, an assise of
[031] darrein presentment between the prior of Wallingford and Roger de Quency,
[032] Simon de Chennor intervening.¹⁹ If he has been coerced in time of peace to give or
[033] do something against his will, by duress and force in prison, when he has escaped
[034] from the prison and the force

Notes

1. Supra 52, infra iv, 293, 335

2. New paragraph

3. ‘et’ for ‘etiam’

4. Glanvill, vii, 1: infra v

5. D. 2.14.7.4: ‘nuda pactio obligationem non parit’; C. 2.3.10; infra 283

6. Supra 50, infra 120

7. C. 2.3.20

8. Infra 121 ff., 156 ff.

9-16. This portion belongs infra 287 at n. 23

10. Supra 50, infra 81, 287; D. 2.14.7.5; C. 2.3.13

11. Infra iii, 144

12. Infra iii, 145

13. Infra 69, 145

14. Infra 145

15. C. 2.3.13

16. Azo, Summa Cod. 2.3, no. 15: ‘vestitur autem pactum sex modis, re, verbis, consensu, literis, contractus cohaerentia, rei interventu’; infra 283-4; G’terbock, 140; Br. and Azo, xxii, 143, 159; Dilcher in Zeit d. Sav. Stift. (Rom. Abt.) lxxvii, 278 ff.

17. Supra 49, 59

18. B.N.B., no. 1913 (margin): ‘Nota quod si vis aliqua fuerit in gwerra, si statim post gwerram non conqueratur consentire videtur, quia iniuria per dissimulationem abolitur.’

19. B.N.B., no. 1126; C.R.R., xv, no. 1405