(M531) We may note as a common mark of all these transactions the care
taken to fix and define ownership. The transfer is “from” A to B. In early
times the property is usually first stated to belong to A. Then he is
often said in Assyrian times to be the _bêlu_ of it, its full and
legitimate owner. The new owner had to be satisfied that A was competent
to part with it. This is often made clearer by saying, in later times,
that no one else has any claim upon it. Hence arise guarantees against
defeasor, redemptor, _et cetera_. This subject of guarantees is most
interesting, though often obscure. The investigation of the varied rights
which were likely to interfere with freedom of transfer is most important.
(M532) In certain cases we shall find a sort of hypothecation of property,
as when it is assigned as security, but not given up. The possession is
not free, but it is not alienated. We have also a _donatio retento
usufructu_, which only gives a reversion of the property. Here also
certain rights may be reserved against the ultimate possessor.
Another interesting point is that property may be credited to a man, and
set off against other liabilities, so that he may never actually be in
possession, but only nominally passing it on to others, and even,
eventually, it may come back to the first owner, who may never part with
it at all.
(M533) Undoubtedly men were at liberty in daily life to make presents one
to another. But the rights of the family were so strong that for the most
part all the property of the parents was jealously regarded as tied to the
children, or other legal heirs. When a man died, his property was divided
according to a rigid law of inheritance. When a woman left her father’s
house to be married, the father gave her the share of his goods which fell
to her, without waiting until his death to divide his substance. In this
case she had nothing further at his death. But the property was not her
husband’s, though he and she shared its use; it was entailed to her
children. If she had none, it went back to her father’s house: to her
brothers, if she had any, or to her father’s other heirs. Unless a man
legally adopted his natural sons, they did not inherit. Hence neither man
nor woman was wholly free to give. But, hedged about with consents and
reservations, donations took place.
(M534) We have a great variety of types of donation, not always easy to
classify, and often obscure, in some details. The common characteristics
are that deeds of gift were duly executed, sealed, and witnessed; and that
the consents of the parties, whose expectations were thus diminished, or
restricted, had to be obtained.
Public-domain text, read in full here on John Shaqi.
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