Bracton: Thorne Edition: English. Volume 2, Page 74

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Volume 2, Page 74

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[001] and the feoffment, though they begin at the same time,¹ cannot stand together or
[002] proceed together, one takes precedence and is effective and the other is in suspense
[003] until the condition occurs or fails to occur. If the condition does not occur both
[004] are terminated, that is, the term and the [free] tenement or the fee,² and conversely,
[005] if the condition occurs, it at once ceases to be a term, and the fee or [free] tenement,
[006] which existed from the beginning and was in suspense, then becomes valid and
[007] effective and the term is extinguished, or conversely.] and thus an agreement made
[008] by ancestors injures heirs, by force of the condition. For one may renounce for
[009] himself and his own a right introduced for his protection,³ [since such an agreement
[010] was acceptable to his ancestor, damage but no injuria is caused the heir,] for no
[011] injuria is done to one who knows and consents.⁴ Thus an agreement prevails over
[012] law.⁵ [With reference to what is said above, that one may renounce for himself and
[013] his heirs matters introduced for his own protection, one may not, on the other hand,
[014] renounce those introduced for the protection of others, as will be explained below
[015] [in the portion on] exceptions, in the title on prohibitions.]⁶ Suppose that one
[016] demises land in gage subject to a condition providing that if his money is not paid on
[017] the day the land given in pledge may remain to the creditor. In that case, if his
[018] money is not paid on the day, the land so pledged will remain to the creditor because
[019] of the condition annexed with the consent of the debtor, and so it will be if a single
[020] and certain day is fixed. But suppose one lends money to be returned at several
[021] terms, and that if the debtor fails to pay at any of those terms that the thing pledged
[022] may remain to the creditor. Having defaulted in the first term, the debtor is nevertheless
[023] prepared to satisfy the entire debt at the last term or before; quaere whether
[024] the condition is binding. It seems that it is, for the agreed upon condition is not
[025] satisfied, since a time may be long or short, which is true. But suppose the debtor
[026] answers in this way, that he came on his day, no matter at what hour of the day, since
[027] the whole day is allowed him,⁷ prepared to satisfy [the debt] and proffered the money
[028] due, and this is supported by the testimony of honest and law-worthy men, who so
[029] testify on the evidence of their own sight, who saw the money in cash;⁸ the debtor
[030] is freed [of his debt]. Hence the creditor must show himself to receive [his payment]
[031] and make himself accessible no matter at what hour of the day, that no default may
[032] be imputed to him. If the debtor is in mora and the creditor is present, the debtor
[033] will lose, and so if⁹ the debtor is present but does not have the money,

Notes

1. Reading: ‘licet incipiant eodem tempore’

2. ‘terminum et tenementum vel feodum’

3. C. 2.3.29.1: ‘alia regula est iuris antiqui omnes licentiam habere his quae pro se introducta sunt renuntiare’.

4. Drogheda: infra 149, n. 5

5. Glanvill, x, 14

6. Infra iv, 251, 268, 269, 278, 283

7. ‘quacumque hora ... debitori,’ from lines 30-31; infra iii, 294

8. Infra iii, 286

9. ‘sic si’