2. Second Conclusion

111. Secondly, transfer can be done by act of a private person possessing ownership immediately over a thing [n.102]. And this can be either through an act purely liberal or through an act liberal in a certain respect. The first is when the transferrer expects no return; the second is when he does expect for what he transfers something to be returned to him.

112. About the first let there be this conclusion, which is the second of this article [n.103]: the owner of a thing who is not prohibited by law, or by a superior on whose will he depend in giving or transferring or donating, can donate his property to another willing to receive it.

113. The proof of this is that, because he was owner by an act of his own will, therefore by will he can cease to be owner; and there is someone else willing to receive it, therefore can he start to be owner. And no superior cause prohibits the first from ceasing to be and the second from starting to be owner. Therefore, by this donation, a transfer of ownership truly and justly takes place.

114. From this is plain what is required for a just donation: that there is liberal transferring on the part of the giver, and will of receiving on the part of him to whom the donation is made, and freedom on the part of both (of the former’s giving, of the latter’s receiving), and that by no superior law is the former or the latter prohibited, nor prohibited by act of another on whom in this transfer they may depend.

115. On account of defect of the second [sc. willing receiver] no one can give money to a Friar Minor, because he does not will to be an owner. On account of defect of the first [sc. free transfer by the giver] a monk cannot give without permission of the abbot, nor the son of the family without the will of the parent or parents, nor even a cleric in some case without the will, or at least against the will, of the Lord Pope, as is contained in Boniface VIII, Book Six of the Decretals, III tit.20 ch.1, ‘On Censuses’, ‘Roman’, for the observance of which chapter Gregory X set down a penalty, the chapter about which penalty is today in ibid. ch.2 (‘It demands’), namely that clerics making visits do not receive little gifts from those visited, and if they do, they are obliged to restore double - or let them not be absolved of the curse they ipso facto incur, as is said, Innocent IV, ibid. ch.1.

116. Now to this corresponds, in the case of transfer of use, liberal accommodation.A term that in the legal context means ‘bailment’, which is a relationship where the owner transfers to another the physical possession of personal property for a time, but retains ownership. ²³ And in order to be just it has similar laws, because it requires free will in him who accommodates, and it requires in him who receives that he has a will to receive the thing accommodated for his use, and that there is no will of law or prince standing in the way of the accommodation.

117. There is another transfer that is not purely liberal but where the transferrer expects an equivalence for that which he transfers, and it is properly called a ‘contract’, because the wills of the parties are there drawn together;‘Contract’ comes from the Latin contraho which literally means to draw (‘traho’) together (‘con’). ²⁴ for the former is drawn to transfer to the latter by the gain he expects from the latter, or that he expects to be transferred to himself.

118. Of this sort of contracts, wherein ownerships are transferred, some are transfers of a useful thing immediately for a useful thing, as wine for grain and the like, and it is called an interchange of things, ‘I give so that you give’ or ‘I give if you give’. Some transfers are of a useful thing for coin or conversely; for because it was difficult to exchange things for use immediately, therefore a medium was invented through which such exchange might be facilitated, which is called ‘coin’, and the exchange of coin for a useful thing is called ‘buying’, and the converse is called ‘selling’. But some transfer is of coin for coin and is called giving a loan, or accepting a loan. There are therefore six contracts in which ownership is transferred.

119. To these contracts correspond some contracts where the use, or the right of using, is transferred while ownership is retained. For to exchange of things corresponds mutual or interchanging accommodation, to buying corresponds leasing and to selling corresponds renting out. To the accepting of a loan there does not properly correspond anything in the transfer of the use of a thing.