p i
other return for the gift than"the remaining part, it follows that the'
donor is not entitled to refume an equivalent from the gift.— He is,
however, allowed an option in this inftance, with refpeCt to the whole
gift, becaufe he did not relinquifh his right of retractation on any
other condition than that of the fecuritv of the whole of the return;
and as that does not prove compleatly fecure to him, he is therefore
at liberty to reftore the remaining half of the return, and to take back
the whole of the gift.
When the re- I f a perfon make a gift of a houfe to another, and the donee give
p o fe io n ty to a return to the donor for a half only of the houfe fo given, the donor
a Parl> the may in that cafe refume the half of the houfe for which he received no
remainder o f J • . . . • .
the gift may exchange, fince a bar to his retractation exiiled only with relpeCt to
be refumed. •, r i i r the other hair.
Rctraflation A g i f t cannot lawfully be retraced but with the confent of both
tuS'can/mt, parties, or by a decree of the Kdzee, becaufe the retraClition o f a Igift
or a decree. js a point amongft the learned. There is, moreover, a degree
of weaknefs in a retractation, becaufe the admiffion of it is contrary
to analogy, fince it is a power over the property of another,‘as
the right of property in a gift is eftablifhed in the donee. Befides,’
as there may arife a contention with refpeCt to (he objeCt in lieu of it,1
(fince the donor may claim fomething which the donee may refute,)1
the contention, therefore, cannot poffibly be fettled but by thé confent
of the parties, or by a decree of the Kdzee,— infomuch that if
the gift be a Jlave, and the donee ihould have emancipated him previous
to the decree of the Kazee, the emancipation holds good. If the
donor Ihould prohibit the donee from keeping pofleffion of the gift,
and he neverthelefs retain poffeffion of it, and it be loft or deftroyed
in his hands, he is not refponfible for it, becaufe his right of property
in it is held ftill to continue in force.— T h e fame ride alfo holds
where the gift is loft or deftroyed in the poffeffion of the donee, fub-
fequent to the decree of the Kazee, but prior to the demand of it by
the
the donor, becaufe the original tenure by which he held it was not a.
tenure of refponfibility, and that tenure ftill' exifts.— But if the donor
demand the article, and prohibit the donee from keeping poffeffion qf
it, fubfequent to a decree of the Kazee, and the donee neverthelefs
continue to retain it, he is refponfible for it, as he is then guilty of a
tranfgreffion.
W h e n a perfon retraCts his gift, either in virtue o f a decree of the The donor’ s
Kdzee, or of the mutual confent of the parties, it is an annulment 19 of re-Poffeffi?n' . . . .r , • o f the gift isthe
original gift, and not a gift de novo on the part of the donee, and not require
therefore feizin by the donor is not in fuch 'cafe a requifite condition. ofre"^aa-ty
Retractation, moreover, is lawful with refpeCt to an undivided por- tion-
tion; but i f a retractation were a gift de novo, feizin would be a requifite
condition, and confequently retractation with refpeCt to an undivided
portion would not be lawful. The reafon of this is that a deed
of gift is valid under the refervation of a right Of annulment. The
donor, therefore, in annulling the deed, does no more than pofiefs
himfelf of his own eftablilhed right; and hence a retractation is an
annulment in all cafes, that is, whether it take place nfvirtue of a
decree o f the Kdzee, or by the confent of both parties.— It is other-
wife with refpeCt to a buyer’s return of goods on account o f a defeCt
without a decree of the Kdzee; for that, with FefpeCtto a third' per-
fon, is -confidered as a contract de novo, fince the purchafer has not a
power of annulment, but has merely a right to the quality of fafety in
the goods; and in defeCt of that quality, he is, from a principle of ne-
-ceflity,' allowed to annul the contract.— Its being an annulment, therefore,
with refpeCt to any third perfon, muft depend upon the Kazee's
•decree.— Hence there is an effential difference between the retractation
■ of a gift, and the return of goods on account of a defeCt.
If the fubftance of a gift prove the property of another after it has The donei,
been deftroyed, and the donee make good the lots to "the proprietor, incurring any
in that cafe he is not entitled to receive any thing in compenfation in^corfe-1'^
V ol. III. R r ■ from ‘>uence of a