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VIII. Alienations (2)
Alienation is the most comprehensive term for any transfer of proprety other than by inheritance. As such it is the reciprocal notion of "purchase". In old English law terminology, "purchase" means any acquisition other than by inheritance. Blackstone (* Commentaries *, Book II, chapter 15, p. 241):
<< Purchase, * perquisitio *, taken in its largest and most extensive sense, is thus defined by Littleton; the posession of lands and tenements, which a man hath by his own act or agreement; and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance; wherein the title is vested in a peson, not by his own act or agreement, but by the single operation of law.
PURCHASE, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I * give * land freely to another, he is in the eye of the law a purchasor...>>
Mark: Nelson's own crooked phrasing: „A sale is the irrevocable transfer of property to another, usually for a monetary consideration or its equivalent." In fact, a consideration is itself an equivalent, either in money or otherwise.
The distinction has led to some conclusions which may appear odd. If a father who settles his estate upon his son before this son is born, the son takes the estate not as heir but as purchaser. If the father devises his whole estate to his son by will, the son takes by inheritance, provided there are no special conditions attached to it. If some conditions are limited on it which do not correspond to the normal course of inheritance, he is, however, a purchasor.
Alienation not only encompasses bargain and sale. In Book II, ch. 20, p. 310, Blackstone give other modes of alienation; "1. Feoffment [to give feud]; 2. Gift; 3. Grant; 4. Lease; 5. Exchang; 6. Partition: * deivative * are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance." In fact, any form of disposing with property other than by inheritance, the reciprocal category of "purchase" in legal terminology.
„As „purchase" is the overall category of non-hereditary acquisition, so is "alienation" the overall category of non-hereditary transfer of property." Nelson starts his teaching of old English law with a blunder: "An alienation is the sale of property". The reverse is true: A sale is a particular form of alienation.
(to be continued)
© Robert Detobel