Chapter 5: Fifth way of acquiring Property: Voluntary Transference
Two things are required in voluntary transference:
- A declaration of the intention of:
- the person who transfers, and
- him to whom it is transferred:
- The actual delivery of the thing.
In most cases, the first of these is not binding without the latter, because there is no right without possession.
Before possession you can have no right to the thing, though you may have a right to make the man keep his promise.
- If a man borrowed a thing and afterwards bought it, there is no need of delivery because he already has it.
Property therefore cannot be transferred without tradition or delivery.
- If I buy a horse from a man, and before delivery to me he sells it to a third person, I can only demand the horse from the person who sold it.
- But if it has been delivered, I can claim it from the buyet.
It is not easy to determine what gives possession when transferring the property of lands and large objects.
- Grotius justly observes that in the transference of a pledge, there is no need of delivery, because the thing is already in the man’s possession
- In France, if a man declares his purpose to make a donation, and die before the delivery, the donation goes to the heir.
- This was also a custom among the Visigoths.
Until the custom was abolished by a late statute, no vassal or possessor could alienate his estate without the superior's consent
- As there cannot be an actual delivery, in Britain a symbolical delivery is used.
- An ear or sheaf of corn signifies the whole field.
- A stone and turf, the estate to the centre of the earth.
- The keys of the door, the house.
- By the Scotch law, if there be a transference of several estates, the purchaser must be infeft in each.
- By the English law infeftment in one serves for all when done in presence of the county court.
- In Scotland it must be done on the land:
- it is enough in England if it be done in view of it.
- Besides delivery a charter or writing, showing on what terms the transference was made, is also requisite for security.
Afterwards, however, it became necessary to accept of creditors.
- As he held it for military service, it was requisite that the estate should be resigned to the superior.
- The superior resigned it to the purchaser, as it was proper that his vassal should be of his own choosing.
Similarly, as the tenant was liable to oppression from a new superior, the lord could not dispose of his estate without his vassal's consent.
- This was often used as a handle to elude the law.
- The seller gave a bond for money borrowed, without mentioning that it was a sale.
- This made the lands adjudged to the creditor.
- The lord was then obliged to accept of him as his vassal.
- If therefore either of them alienated any part of their estates without the other’s consent, his right was forfeited.
The duty of vassals to their lords continued longer in Scotland than in England because of the difference of their government.
After society was fully established, there was no occasion for mutual consent, because the tenant was protected by law, whoever the lord was.
- England all along favoured democracy
- Scotland favoured aristocracy.
During the civil wars a new kind of delivery took place.
- When a person transferred his estate to another for his own use, it was not affected by forfeiture.
- The person to whom it was transferred was considered as the bailiff.
- He took possession in the other’s name.
Next: Chapter 6