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The Jersey Law Review - June 2004

THE STRUCTURE OF A PRO FORMA JERSEY CONVEYANCE

Richard Falle[1]

Introduction

1       One could be excused a yawn in the face of this title.  At first glance the subject does indeed seem a little daunting.  Not only is the language of conveyancing French; worse, it employs technical terms some of which have roots in Old Norse.  Words such as these, while heavy with meaning for the initiated, have no resonance for the Anglophone with a modest command of French.  Moreover, the documents have a formal structure which must seem strange, indeed mysterious to an Englishman.  Yawning however, is not justified in those who aim to practise law in a jurisdiction where some knowledge of history is a prerequisite for the understanding of Jersey custom.   Any claim to such understanding must therefore ring hollow if made without knowledge of those formal and traditional elements which frame the typical transactions involving land.  It is submitted moreover, that closer study of them would reveal not only much that is inherently interesting but also the existence of an efficient and flexible conveyancing system.  What follows is an explanation of the component parts of a typical contract of conveyance of immoveable property or, as it is more succinctly known to those who draft them, a contrat héréditaire - an hereditary contract.  The aim is modest: to provide a simple introduction to the subject.  It is limited to an examination of form and selected vocabulary and makes no pretence at being a treatise on what is a major branch of legal work and lawyers’ business.  It will not, for example, explain how an investigation of title is carried out nor will it explain in any detail the professional practices, customs and usages which experience and prudence have dictated over a long period.  It is concerned with a particular precedent or style of proceeding: a well tried form of words recognised by the court.

Le Registre Public

2       One of Jersey’s treasures is a public register of land transactions dating from about 1602.  Because its foundation coincided with a visit to the Island by Sir Walter Raleigh, then Governor of Jersey, the credit for the initiative has been claimed for him.  He was however, not present when the States met on the 17th July 1602 and resolved that ung registre soit faict et poursuyvy.[2]  Raleigh was however present at the next sitting of the States on the 24th July 1602 when further orders were made in relation to contracts and their registration and in particular pursuant to ordinances made in 1562 and 1583 by Royal Commissioners.  On this occasion the States not only provided for registration to avoid loss and insecurity of title, they also stipulated the elements which a contract of land should contain -

“… que tous passemens qui seront faicts par devant le Bailly ou son lieuten de deulx ou troys de Justice, seront escript en une lettre formelle, et non en minute:  cette mesme lettre estant par eux signee sera desdans deulx ou troys iors après delivree audit Officier [the registrar]:  lequel fera …legiblement en registerer le dapte par mots en escript …les noms du Juge et iuretz, les noms et surnoms des parties contractantes, la qualité et quantité de la rente ou terre vendue baillée ou echangee et sur quelle assiette, par quelle prisz d’argnt ou de rente, les conditions et circonstances formelles s’ily en a et la fournesture des parties …”

3       A number of contracts registered in obedience to the Ordinances of 1582 and 1583 are to be found copied in Livre 19 of the Rolls of the Cour de Samedi.  A study of these, and earlier surviving examples, shows that the formal characteristics of a typical contract have remained substantially unchanged since the 14th century and probably earlier.  The 1602 Act of the States noted above was in fact in this matter regulatory only.  It made no innovation in terms of form.  Their survival is testimony to the durability of the parchment on which they were written and the green wax used to seal them.  It is also testimony to the extraordinary continuity of custom.  It must be said however, that the general form of this contract is not unique or peculiar to Jersey.  Similar documents were used in continental Normandy from the earliest times up to the French Revolution.  The form has survived for so long in this Island because it has been flexible enough to accommodate subject matter which, in recent decades, with the widespread development of building estates and the use of sophisticated commercial property leases has become increasingly complex.

La passation des contracts

4       Every hereditary contract opens with the ancient formula for letters patent -

“A Tous Ceux Qui ces présentes Lettres Verront ou Orront ……” –

(“To all those who these present Letters shall see or hear”)

5       This announces that what follows is a matter of public record.  The transaction may be one between private individuals, but the document minutes an event intended to be broadcast and known throughout the community.  The event must take place before the Bailiff or his representative and at least two Jurats.  Without that formality the transaction would be incomplete, - in Jersey, a mere promesse à héritage ne vaut. It must be clothed with the appropriate formalities to take its full effect.

6       This procedure (la passation des contrats) is the first private business done in the afternoon of the weekly sitting of the Cour de Samedi.  Formerly, it coincided with Market Day held in the Place du Marché (now the Royal Square) adjacent to the Court.  The Court here is acting ministerially, as a place of record.  The passation is not a judicial procedure.  There is no finding or adjudication on the validity of what passes before the Court. The formalities are however, solemn.  The parties, called, stand in the (often crowded) well of the court while the Greffier (Clerk), holding the engrossed contract, reads out the detail of the transaction written on the codement or backing.  The presiding judge then asks whether the parties know the contents of the deed and, if satisfied on this point, the parties, right hands raised, are sworn to honour the terms of the contract  à peine de parjure (“on pain of perjury”).  The contract is then handed by the Greffier to the members of the court who sign it as witnesses to the act.  Given that for most people the buying and selling of property, often their home, is the most significant business transaction of their lives, this ancient solemnity is memorable and arguably, for many, deeply satisfying. 

7       The earliest surviving written contracts indicate that they were first sworn before the Bailiff and Jurats and later read publicly before the congregation à l’issue du service divin, literally en ouïe de Paroisse or “in the hearing of the Parish”.  There is some evidence that before transactions were reduced to writing the parties to a transfer of title would make a simple and solemn verbal declaration en ouïe de paroisse and it was this declaration which bound the parties.  It may also be for this reason that the whole transaction is recorded historically.  The written document minutes and announces an event which has already occurred.

Parties and forms of address

8       The Royal Court is constituted by the Bailiff, his Lieutenant or the Deputy Bailiff sitting with a least two Jurats.  Because the contract is in form the patent of the Royal Court, the presiding judge is named and his title stated.  All are enjoined to take notice of the parties appearing before Court that day “Sachent tous ….”.  (“Know all that in this year of Grace there appeared personally in Court at St. Helier before us ….”). 

9       The traditional manner of naming parties to a contract is of social, if not legal interest.  The reader of a contemporary contract will be immediately aware that the notion of social degree has survived, if not generally, then certainly among those who draft such contracts.  Each of the parties is given the style which the draftsman considers to be appropriate to his social position.  This may be reasonable (and certainly not arbitrary) in the case of those who have inherited titles or had honours bestowed upon them.  For the rest, the artificial perpetuation in the twenty-first century of a social hierarchy with its origins in pre-revolutionary France is surely anomalous.  Surviving 16th century contracts do not employ these titles.  Nonetheless, a conveyancing clerk with an eye to these things will still today, know that a Jurat holding office by Royal Patent is entitled to be styled Ecuier, while his first born son is Gentilhomme.  Advocates, graduates of Oxbridge, officers in Her Majesty’s Armed Forces above the lowest commissioned rank and certain other professionals are entitled to be styled Ecr.  The majority of men, without special title, are styled Monsr. and women Demoiselle, usually contracted to Dlle.  Half a century ago, a conveyancer who wished to disparage an illiterate client, might describe him as Maître (“Mr.”) and his wife Maîtresse (“Mse”) titles which nearly, if not exactly, correspond with the English “Mr.” (“Master”) and “Mrs.” (“Mistress”).  A modern society, now shaped more by merit and education than social origin, should see little to recommend the continuing pretence at social differences which have long disappeared.  It must be open for any lawyer to omit these forms of address from his documents.  Perhaps it is time for the Royal Court to issue a direction on the matter.  Despite this, and notwithstanding the “politically correct”, there is a case for retaining the traditional recording of a party’s marital status in the contract.  Jersey practice has always been to ensure that a married woman does not lose her maiden name.  Accordingly, when a married or widowed woman transacts, her husband must be identified.  It is submitted that those whose business it is to check title and to search for third party interests such as dower, are assisted by this convention.

10     The vast majority of transactions are of course, for the sale and purchase of perpetual rights in land.  The formal character of such mutations of title is again flavoured by history: the transfers are nominally the lease and sale of feudal tenancies, land held by the tenant of a fief.  Such tenancies were in origin, vulnerable to the rights of the Seigneur.  First held for a term, later for life, they eventually became hereditary.  In practice, the vast majority of such tenancies are hereditary, perpetual, indefeasible, and freely alienable.  Moreover, while the terminology of feudalism survives, the hereditary tenancy is, in practice, the equivalent of an English freehold.  The vendor and purchaser are said to transact for themselves and their heirs in perpetuity (à fin d’héritage). Where a corporate body transacts, it does so for itself and its successors in perpetuity.  It is submitted that usages such as these do not impose a burden on the efficiency of business transactions.

11     To pass a contract involving a transaction in land, a party must either appear before court in person or by his attorney, if a minor, by his tuteur or guardian, if under interdiction, by his curator and (rarely) if out of the Island and out of contact, by an administrator appointed by the Court.

12     Many transactions will involve third parties who must also appear or be represented in court at the passing of the contract.  Typical examples would be a neighbouring owner whose boundaries are in issue, a lender releasing his right of hypothec, a landlord consenting to an assignment of lease or a widow abandoning dower rights.  It is perhaps worth noting, on a practical point, that a third party to a contract is only introduced at the point when his appearance is material, namely, after the principal business of the contract has been recorded.  It is accordingly important for the conveyancer checking title, to be alert to this fact.  The original document passed before court may or may not be held by the parties.  If it is, the codement or narrative of the transaction reciting all the parties to it will be found on the backing sheet.  As noted above,  it is this codement which is read out aloud by the Greffier when the parties are called.  No such codement however, appears on the copy of the contract enrolled in the Public Registry and it is here of course, that the principal title search is made. 

The free consent of the parties to gifts and sales

13     It is noteworthy that transacting parties appearing before the Court are always recorded as doing so of their own free will.  This is no mere formality.  It is to avoid any inference that a donor or vendor might have come to court under duress, under undue influence or, more likely,  duped into parting with his property gratuitously or for less than half its real value.  In the case of a gift or in a sale at less than market price, and in order to show that his appearance is made animo donandi, the donor is said to be mu de bonne volonté towards the donee.  In the case of other contracts, a vendor, lessor or other transferor is said to appear de sa libre volonté.  In the case of a widow, the Royal Court was always concerned that in abandoning her dower rights she did so of her own free will.  With her protection in mind it was until recent years the practice specifically to ask a widow in open court whether she gave up such rights freely.  An attorney appearing on her behalf was expected to have taken specific authority in his power so to act. 

14     Custom always leaned against the notion of gift, the inference being that a donor was seeking to disinherit his heir in favour of a stranger and thereby breach the principle embodied in the maxim conservation de bien entre les mains de la famille.  Perhaps to give more certainty to the donee’s title, such a conveyance is called a donation, cession, et transport héréditaire.  What however, if the donor had retained right in the subject matter?  There is another maxim: donner et retenir ne vaut – (translated loosely) “at once to give and to retain is not good in law”.  The conveyancer therefore who wishes to make the donee’s title certain may add the verb quitter to the words of conveyance to make explicit its irrevocable character.  Thus (drawing on the foregoing) the donor appearing before the Royal Court must do so animo donandi, freely, de sa libre volonté, absolutely, il donna, quitta, céda et transporta and perpetually, à fin d’héritage.

15     Where the transfer of title is made by way of gift, it is said to be à titre gratuit.  Where, in contrast it is supported by bona fide consideration, it is said to be à titre onéreux.  In that case it is sufficient, (except in the case of a sale at less than half market value) for the conveyancer to record that the transferor appeared of his own free will, de sa libre volonté.

Other interests

16     Jersey law recognises the creation of other lesser hereditary interests in immoveable estate.  One example is a contract of lease (a bail à termage) for a term in excess of nine years.  A right to the  possession of land for life or a term which confers a right in rem is termed usufruit.  Perpetual servitudes and restrictive covenants may be created in or over land which is described as le fonds serviant in favour of other land which is termed le fonds dominant. 

17     In all contracts affecting land, except as limited, a party is said to act pour lui et ses hoirs - for himself and his heirs -  and where an hereditary title without term or retention is involved, it is said to be à fin d’héritage normally, if not entirely accurately translated, “in perpetuity”.  The propriété of land enjoyed à fin d’héritage is an ownership comparable as noted above, to the English freehold.  The word propriété may mean both ownership and the land owned, although it is often qualified with the adjective fonçière to indicate unequivocally that the rights concern immoveables only.

18     Land in Jersey may be held jointly or in common by two or more persons. The peculiarity of a joint tenancy is that the full interest is contingent upon survival.  Such a tenancy was sometimes in the past taken by married persons.  In the case of Broomer v Arthur[3] the Privy Council construed a joint tenancy as “according to the conveyance which [the vendor] did execute which is the measure of their right, each of the spouses took nothing more than a conjoint interest in the …… lands during their joint lives with the chance of getting the fee of the whole, in the event of his or her survivance”.  Survivorship however, was calculated to defeat the rights of the heir at law and it was a well established rule of Jersey Custom which invalidated any gift or conveyance of his land made by the husband in favour of his wife to the prejudice of his heir to the extent of one half of the interest passing to the survivor.  The position of a survivor was therefore subject to challenge by the principal heir of the first to die.  He could demand at least half of the property.  Such rights have long since been abolished but colour the language of their creation.  Thus special words of conveyance are used when creating a joint tenancy to avoid the inference that when two or more persons purchase a property together they hold in common.  Husband and wife normally purchase conjointement par ensemble pour le survivant d’eux et pour les hoirs de tel survivan”.  An earlier formula to the same effect had the tenants taking conjointement par ensemble à qui plus vivra plus tiendra et le plus suffisant des deux pour le tout et pour ses hoirs. 

Le corps de bien-fond

19     Moving now into the body of the contract, it is here that the subject matter of the conveyance is described, that is to say, a parcel  (or parcels) of land with or without buildings upon it.  What follows the words of conveyance is in effect an inventory of what is to pass.  Thus, the typical house and its immediate surrounds may be described as certaine maison, garage et offices avec les jardins en devant et en derrière etc.  All of these elements, if physically conjoined, make one parcel but if separated by third party interests or, for example, a public road, must be treated separately.  In dealing with a single parcel therefore it is usual for this to be stated in a conventional formula on the lines of le tout se tenant et joignant ensemble et ne formant qu’un seul et même corps de bien fonds. 

20     Conveyancing practice, reinforced by the provisions of the Loi (1880) sur la propriété fonçière (“the 1880 Law”), requires that land be conveyed in discrete parcels or corps de biens fonds.[4]  The 1880 Law stipulates that save in the case of a judicial hypothec, (which, unless expressly limited, will charge all the land of the debtor) hypothèques conventionelles simples and hypothèques fonçierès (forms of hypothecation in common use) must charge a specifically defined corpus fundi.[5]  The security for a loan is thus known and the enforcement procedure against a defaulting borrower can be carried out separately on each hypothecated parcel. Consideration of such procedure is beyond the scope of this piece.  The conveyancer will know, however, that the 1880 Law requires not only that each corpus fundi be defined in a contract,  but also that each such corpus be apportioned its separate consideration.[6]  Further, where third party interests, servitudes or covenants are involved, the extent to which to which they affect a particular parcel must also be clearly defined. 

Tenants et aboutissants

21     The 1880 Law calls for the conveyancer to describe the tenants et aboutissants – loosely translated, the boundaries and adjoining lands - and the conveyancer today is negligent who does not look at the neighbour’s title to ensure consistency of title.  It is also helpful if not imperative, to give the neighbour’s root of title because the land conveyed may thereby be defined by a reconciliation of the (possibly competing) claims on the boundary.

22     The position is normally clear: one neighbour claims a particular feature while the other’s title is silent.  In case of uncertainty and in default of agreement land may be conveyed (in translation) “with all such avenues, walls, hedges etc. as may belong thereto”.  In strict contract this practice may be redundant but it raises an inference of title where the neighbour’s contract may in contrast be silent.

Technical terms

23     What then of boundary features, such as walls, gables, boundary stones, raised earth banks, live hedges etc?  Each of these, whether exclusively or party owned (mitoyen) has its baggage of law and custom essential to conveyancing practice  but which cannot be described in detail in an article concerned primarily with form and vocabulary.

24     Much of the technical vocabulary describing land has modern French and English equivalents.  This is, however, not true of all terms employed in a Jersey contract and a simple translation from one language to another can in any event be misleading.  Arguably therefore, the original Jersey word is best retained in use.  A Jersey conveyancer is one trained to use technical language.  He will therefore encounter no difficulty in mastering vocabulary which not only carries legal consequences but also enables nice distinctions to be made.  Thus while a pièce de terre translates easily to a “parcel of land”, a camp or champ is open unenclosed land, while a clos is a parcel enclosed against its neighbours.  A pierre of whatever shape or hue once planted to establish a boundary and made the subject of covenant, becomes a borne.  Other words which, although now arguably redundant in a modern conveyance, often have a richness of association and historical meaning which justifies their use.  One example is hôgard, a word invariably thrown into the typical description of a farmstead. In the long distant days of subsistence farming, the harvest would be gathered into a secure place and the wheat and other cereals stacked on structures supported by mushroom shaped stones known as pierres de tas.  This protected yard was known as the hôgard or haugard, a word having its origins in old Norse (hau = aoust = harvest = (in French août the harvest month) and gard = yard.  From the same root and doubtless a similar function comes the English word “hangar”.

25     Among the buildings of the farm which also recall a bygone economic order are the boulangerie (the bake house), and le pressoir, or preinsu, (the press house) where cider was made.

26     Access to a property from the public roads has given rise to the cache, gallicised to chasse or “avenue”.  A field entrance is a brèque (cf “brake” in English).  A related word is Issue.   Its meaning comprehends not only the exit from one parcel of land to another or to the public road, but also  (as issues)  the  shoulders of an avenue or (terrain en issues) a strip of land separated from an original parcel by the passage through it of a road or track. 

27     The fossé, unless time or man has eroded it, is usually an earth embankment.  Most fossés owe their origin to the enclosures of the 16th and 17th centuries when fields were closed against the public roads and against each other, partly to create windbreaks for newly planted cider apple orchards and partly to exclude cattle enjoying common pasture.  Such customary pastoral rights or banon (now obsolete) tended to prevent the exclusive possession of plough and grazing land for nearly half the year.  Fossé, in the French dictionary, means a ditch, whereas the word in Jersey has evolved to mean the bank produced by the digging of the ditch towards the boundary.  To add to the confusion, a ditch having filled over time, that land between the boundary and the foot of the bank is known as the relief or offset which for most purposes has a width of 18 inches (pieds perches Jersey measure, which converts to 16½ inches Imperial measure).

28     The general rule concerning relief is that, in the absence of a contrary covenant with the neighbour this land must always be left open and free of obstruction towards the boundary.  If therefore it is found on inspection that a wall, bank or hedge of live plants has been erected or planted on or over a relief there may be an encroachment on the neighbour’s rights which, dependant on materiality, will require rectification or ratification by the neighbour. 

29     Banque is a less precise concept.  It is used to describe a boundary feature where there is a difference in level between adjacent properties unsupported by an artificial structure such as a retaining wall.  Where not otherwise expressly provided, the presumption is that the banque is a dependency of the superior land.

30     Having completed his description of the land by reference to its limits, the conveyancer now locates the whole by reference to the vingtaine and parish in which it lies.  The naming of the vingtaine supplanted in 1966[7] ancient feudal practice which required the parties to state the fief on which the land was situated, a declaration intended, given the public nature of the contract, to alert the Seigneur to a mutation of title and a new tenant. 

Le tout tel qu’il est

31     Until recent times this clause beginning with the formula “Le tout tel qu’il est….” was held to be a representation by the vendor that the purchaser took the property such as it was “with all such rights, appurtenances and dependencies as might belong thereto …”.  The vendor however, remained liable for the consequences of any hidden defects (vices cachés)  which, when found, might give rise either to an action in cancellation or to a reduction in price. The issues were explored in Kwanza Hotels Ltd v Sogeo Co. Ltd.[8] and following that case the traditional clause was enlarged and amended by conveyancers to avoid the purchaser’s remedy against vices cachés.  In a typical conveyance, the purchaser will now, and save for his remedy in the case of deliberate misrepresentation, take the property “warts and all”, whether apparent or hidden at the time of conveyance.  This has imposed a heavier burden of enquiry upon the purchaser and, on those who advise him, a greater duty of care than hitherto. 

Covenants and servitudes

32     Next in the contract, comes the statement of existing covenants and servitudes.  These are simply acknowledged and are therefore said to be reconnus. Such covenants running with the land bind the purchaser whether recited in the contract or not, and the possibility of their existence justifies careful search of earlier transactions.  Where, in contrast, the purchaser and vendor establish new boundaries between land retained and sold or create new restrictive covenants or servitudes, the parties will again covenant specifically for themselves and their respective heirs, and if the covenants are intended to bind the land in perpetuity they will be à fin d’héritage. 

Provenance

33     By his contract the vendor divests himself of property and at the same time charges the purchaser with the burdens passing with the land.  So, before going on to give his provenance, the vendor will  charge the purchaser A la charge audit acquéreur de se conformer..  to all the clauses, conditions and restrictions to which the vendor was subject on account of the property sold and to which he was entitled etc.”.  Then follows provenance; a vendor must give a root of title, that is to say, a purchase to show a legal origin for his right of possession.  If the vendor is unable to show such a provenance the purchaser is entitled to demand, as an equivalent, that the vendor demonstrate a possessory title of uninterrupted possession, as of right, for at least forty years (possession quadragénaire).  Such a period is required by ancient Norman custom for the acquisition of a prescriptive title.

Consideration

34     The consideration now follows.  It is normally expressed as a sum payable in cash en espèces on the Tuesday next following passation.  Sometimes, the parties will agree that the consideration be paid part in cash on passing contract, the balance to remain hypothecated.  The terms of that hypothecation are set out here.  The vendor in such a case is said to stipuler and the purchaser to consentir to the hypothec. 

35     Existing charges (if any) on the property whether hypothecs created since the 1880 law or rentes (of which see below) created in an earlier period, are recited in the consideration.  The purchaser must undertake liability for these (the cash value of which must be stated) in part payment of the consideration à l’acquit et décharge of the vendor.

36     In the case of an hereditary lease or bail à fin d’héritage the consideration was historically the payment of perpetual rent or rente, typically the reservation of a proportion of the annual produce or value of the land. When, in addition to rente, a cash consideration was included, the transaction was called a bail et vente and the parties respectively Bailleur et Vendeur and Preneur et Acquéreur.  Rentes were originally due in kind and paid annually after the harvest at Michaelmas (29th September).  They reflected the typical produce of particular land at the time of their creation.  The vast majority were accordingly expressed in quartiers, cabots and sixtonniers a measure of cereals such as wheat and barley.  Sometimes, as in the case of ancient seigneurial rentes, the feudal tenant would owe his lord eggs or poultry or other produce. 

37     This short piece is clearly not the place to expand on what is a complex and now arcane subject.  It is perhaps however, of interest to note that rentes were themselves hereditary property to be enjoyed by the rentier as opposed to the “farmer” who actually worked and possessed land which he might or might not have owned.  Rentes, for centuries, represented an excellent investment.  The Rentier could receive his rentes in kind or, if he so elected, in cash at a rate fixed at the market price and published by the King’s Receiver after the harvest.  The value of the investment was historically, by this mechanism, proof against inflation.  In 1880 however, all such rentes were commuted to monetary values.  The result was that what had been a principal investment for the retired and leisured classes quickly lost its attraction.  However, in relation to the owner of land charged with the payment of rentes, the same inexorable inflation both increased the monetary value of his land and decreased the burden upon it.  A century ago the purchase, sale, assignment and division of rentes was a great concern to conveyancers.  Today, most have little knowledge of the subject nor any great need for it.

38     Immediately following the consideration clause, appears an important declaration by the vendor, to the effect that the land, save as otherwise declared, is free of financial burdens  franche et quitte de toutes rentes et autres redevances.  In earlier times the declaration concluded with a saving provision, sauf les droits Seigneuriaux or, where such rights had been redeemed, with a statement that the property was free of them.

Possession

39     Possession is now given.  It may be qualified or delayed.  It may, for example, be proprietary only where a reversionary interest (nue propriété) is acquired and the property remains  subject to the rights of an usufructuary or a contractual tenant.  This too is the appropriate place, if there are such interests, for the vendor to bind the purchaser to honour and discharge his personal obligations to third parties enjoying short term tenancies over the property sold.

40     The unqualified possession formula - Possession desdites prémisses présentement et ensuite à fin d’héritage - has a slightly archaic ring.  Why possession à fin d’héritage?  Could this be the surviving fragment of a ceremonial for the grant of hereditary seisin, predating even the ancient form of conveyance under discussion?[9]  Whether or not this is the case, it is submitted that in modern practice the words à fin d’héritage are redundant but inoffensive.

The vendor’s garantie

41     A titre onéreux is almost invariably supported by the vendor’s guarantee and the clause containing that garantie accordingly follows the recital of the consideration and the giving of possession.  A gift, or titre gratuit, is normally made expressly sans garantie.   The garantie against eviction by one with a good or better title is seldom invoked.  The rights and procedures are set out at length in the 1880 Law.[10]  Oddly, the garantie is said in the contract of sale to be given reciprocally by both vendor and purchaser.

“Partant s’obligèrent lesdites parties pour elles et leurs hoires respectifs à la fourniture et garantie réciproque du contenu des prémisses selon droit.”

42     Why, you might well ask, should the garantie be a reciprocal obligation?  The explanation may be found in an earlier age when, as noted above, the majority of land transfers were made in consideration of the creation or assignment of rentes.  The particular rentes assigned may not always have represented “blue chip” investments.  The purchaser accordingly would invariably bind himself, in exchange for the vendor’s garantie against eviction, to warrant the performance of created or assigned rentes.  Logically, the formula today should reflect the fact that the obligation, which concerns only the vendor’s title, lies on the vendor alone.

Formalities

43     The oath given by the parties concludes the record of the passation.  Beneath, the Bailiff and Jurats add their signatures as witnesses.  On another day the contract is sealed in the Greffe.  Green wax was in former times invariably employed; today a wafer seal has taken its place. 

44     The seal of the Bailiwick is of great antiquity.  It was given by the King to the Bailiff of Jersey and Guernsey in 1279.  The grant[11] contains these words (in translation):-

“We, desiring for the common utility of the men of those parts …. have caused …. our seal to be provided which we will from henceforth use there …. and the agreements and contracts which from now shall happen to be made … and which hitherto were wont to be made verbally, and not by writing, from henceforth shall be sealed with the same seal … And you the Bailiff from this time shall cause such …. agreements and contracts to be sealed with the same seal.”

45     From 1279 to the early 1960’s, in obedience to that Royal grant, the seal of Edward I was in use.  It has since been replaced with the wafer seal of the Royal Court. 

46     There are persons, some influential, who argue that Jersey’s ancient system of conveyancing is in need of radical change.  This is not the place to rehearse the arguments.  It is submitted however, that a system of conveyancing which has shown itself capable of meeting the needs of the community so long that it has become part of its historic fabric, should not lightly be set aside.

Richard Falle is an advocate of the Royal Court and a consultant with Bois Bois, 2, Bond Street, St. Helier, Jersey, JE4 5QR.

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