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Precarium

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(from the Lat. precari, to request, beseech), in the language of civil law, is a compact by which one leaves to another by request the use of a thing, or the exercise of a right, without compensation, but the grantor reserving to himself the power of a reclaimer. The receiver, as a rule, obtains thus the judicial use of the object in question; but the giver can regain possession at any time; and he can, if the surrender be refused, recur to the interdict De precario, or to the Acio prcescriptis verbis. Hence the expression, Precarie possidere, to possess precariously. In canonic law, precarium has not exactly the same meaning. Here the word is feminine (precaeria, ae), and is never applied to movable goods, but always to real estate, which is not necessarily bestowed gratuitously, but generally for the obligation of paying certain taxes, or rendering certain services, and as a consequence it cannot be taken away at pleasure. The origin of the ecclesiastical precaiae is found in the 6th century, when the custom began to prevail, especially in the country, of giving the priests the use of portions of land. Pope Gelasius, in 496, had disapproved of this custom, yet a few years afterwards we find it widely spread. This transfer of real estate to the priest at first depended on the bishop, and was entirely personal, not essentially connected with the office. The ecclesiastical usufructuary had sometimes to recognize its revocability by a special deed, this declaration being accompanied with the promise of paying interest. But little by little the Frankish legislation made these cessions permanent, and the possession of the land was so intimately connected with the performance of duties that it passed uninterruptedly from every occupant to his successor. Thus the precariae took in the course of time the character of real benefices. (See BENEFICE). It was not of rare occurrence that ecclesiastical property of that kind was given for services rendered, or to be rendered, or against payment of a tax, even to laymen. These possessions also were called precariae, for not only did their collation depend on the bishop, but the deed had to be renewed every five years. But this also took in course of time the character of a real lease. Still another meaning given to the word precaria is that of deed— an instrument donating property to the Church, but stipulating for the grantor the use of it during the remainder of his life. The deed of consent given by the other side was called praestaria. Formularies of precaries and prestaries may be found in Marculfi Formul. lib. 2, no. 5, 40, and in the Append. Formul. no. 27, 28, and 41, 42. See Walter, Corp. jum. Germ. antiq. vol. 3.