Bracton: Thorne Edition: English. Volume 2, Page 98

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Volume 2, Page 98

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[001] suppose it is made indirectly, the husband giving [the land] to a stranger that
[002] he may give it to the wife, either at once or after the husband's death, or conversely,
[003] if it is the wife who wishes to make a gift to her husband. It ought not to
[004] be valid, for in that way a fraud is perpetrated against the constitution [of dower];¹
[005] it is just as if the gift were made directly, [for] it does not matter whether what is
[006] done is precisely [what is prohibited] or amounts to the same. ²<The contrary,
[007] however, was held, erroneously and by mistake of the court, and, so to speak, by
[008] counsel of the court, [in the case] of Godfrey of Crowecombe, who gave land to
[009] Robert of Mucegros so that after the death of Godfrey the same Robert might give
[010] it to Godfrey's wife.>³ Suppose that gifts are made before espousals and before
[011] marriage: we must see whether they ought to be good. At first sight it seems they
[012] ought to be, for ⁴gifts made to a concubine may not be revoked, nor, if marriage
[013] is afterwards contracted by the parties, may what was formerly valid by law
[014] become of no force and effect.⁵ But a distinction must be made, for it makes a
[015] difference whether it is made ⁶because of affection and the marriage to follow⁷ or
[016] not, for if a marriage was afterwards contracted between such persons it appears
[017] that ⁸marital honor and affection already existed, the persons being taken into
[018] account and the union of their lives considered.⁹ [But suppose the [prospective]
[019] husband and wife betake themselves to other vows and adopt another course; such
[020] gift cannot be revoked if it is absolute and wholly unconditional. But if it is
[021] conditional, as where it is contracted thus, ‘I give that you do,’ it may be revoked,
[022] because [given for] a causa that did not follow.]¹⁰ Simple gifts are not to be made,
[023] either before espousals, before marriage or during marriage, but [only] gifts because
[024] of marriage, as where a constitution of dower is made, ¹¹and provided they do not
[025] exceed the amount of dower,¹² that is, the third part, which is called rightful dower,
[026] as C. 5.3.20.3, where it is said that if a gift differs neither in name nor in substance
[027] from dower before marriage given by the husband, why may it not in like manner be
[028] given after marriage? ¹³We ordain that all persons, before or after they contract
[029] marriages, shall be permitted to make gifts to their wives because of dower,¹⁴ that
[030] is, that a man may settle dower before marriage, during the marriage or after it,
[031] ¹⁵provided that simple gifts are not understood but gifts made because of dower and
[032] propter nuptias. For simple gifts are not made because of marriage, but forbidden
[033] because of it, being made for other reasons, because of lust, perhaps, or the poverty of
[034] one of the parties, and

Notes

1. Supra 54, infra 105, 275

2. Supra i, 377

3. Not in B.N.B. Probably Michaelmas 1250, no roll extant; cf. Cal. Pat. Rolls 1247-58, 79; Cal. Ch. Rolls, 1226-57, 357; Excerpta e Rot. Fin., ii, 238. Information from Mr. C. A. F. Meekings

4-5. D. 39.5.31 pr.: ‘Donationes in concubinam collatas non posse revocari convenit, nec, si matrimonium inter eosdem postea fuerit contractum, ad irritum recidere quod ante iure valuit.’

6-7. Reading: ‘ob causam affectionis et matrimonii’

8-9. D. 39.5.31 pr.: ‘an autem maritalis honor et affectio pridem praecesserit, personis comparatis, vitae coniunctione considerata ...’

10. Reading: ‘quia causa [data causa] non secuta,’ as supra 81

11-12. C. 5.3.20.5

13-14. C. 5.3.20.4

15-16. C. 5.3.20.4