[§ 5. Fifth way of acquiring Property: Voluntary Transference.]

In voluntary transference two things are required: first, a declaration of the intention both of the person who transfers, and of him to whom it is transferred: second, 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. If a man indeed have borrowed a thing and afterwards purchase it, there is no need of delivery, for it is already in his possession. Before possession you can have no right to the thing, though you may have a right to make the man keep his promise or contract. If I buy a horse from a man, and before delivery he sell him to a third person, I cannot demand the horse from the possessor, but only from the person who sold him. But if he has been delivered I can claim him from any person. Property therefore cannot be transferred without tradition or delivery. Grotius indeed justly observes that in the transference of a pledge there is no need of delivery, because in this case the thing is already in the man’s possession1. In France, if a man declare his purpose to make a donation, and die before the delivery, the donation goes to the heir. This was also a custom among the Wisigoths. In transferring the property of lands and other large objects, what gives possession is not so easy to determine. As there cannot be an actual delivery, in our country 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, and 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 Edition: current; Page: [126] serves for all1 when done in presence of the county court2. 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. Till the custom was abolished by a late statute, no vassal or possessor had a right of alienating his estate without the consent of the superior3. As he held it for military service, it was requisite that the estate should be resigned to the superior, who resigned it to the purchaser, as it was proper that his vassal should be of his own choosing. Afterwards, however, it became necessary to accept of creditors, and this was often used as a handle to elude the law. The seller gave a bond for a sum of borrowed money without any mention that it was a sale, by which means the lands were adjudged to the creditor, and the lord was obliged to accept of him as his vassal. In like manner, as the tenant was liable to oppression from a new superior, the lord could not dispose of his estate without consent of 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, which may be accounted for from the difference of their government, for that [of] England all along favoured democracy, and that of Scotland aristocracy. After society was fully established, there was no occasion for mutual consent, because the tenant was protected by law, whatever the lord was.

In the time of the civil wars4 a new sort of delivery took place. When a person transferred his estate to another Edition: current; Page: [127] for his own use it was not affected by forfeiture; the person to whom it was transferred was considered as the bailiff, and took possession in the other’s name.