Chapter 5: Fifth way of acquiring Property: Voluntary Transference

Two things are required in voluntary transference:

  1. A declaration of the intention of:
    1. the person who transfers, and
    2. him to whom it is transferred:
  2. 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.
  • Property therefore cannot be transferred without tradition or delivery.
  • It is not easy to determine what gives possession when transferring the property of lands and large objects.
  • Until the custom was abolished by a late statute, no vassal or possessor could alienate his estate without the superior's consent 3
  • Afterwards, however, it became necessary to accept of creditors.
  • 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.
  • 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.
  • During the civil wars4 a new kind of delivery took place.

     
    Next: Chapter 6