[IDEM libro septimo disputationum. ] §12.1.18.prSi ego pecuniam tibi quasi donaturus dedero, tu quasi mutuam accipias, Iulianus scribit donationem non esse: sed an mutua sit, uidendum.
[THE SAME, Disputations, Book 7] If I should give money to you as if to make a gift, and you should receive it as if it were a loan, Julian writes that it is not a gift; but it must be considered whether it is a loan.
et puto nec mutuam esse magisque nummos accipientis non fieri, cum alia opinione acceperit.
And I think that it is not a loan either, and rather that the coins do not become the property of the recipient, since he received them with a different expectation.
quare si eos consumpserit, licet condictione teneatur, tamen doli exceptione uti poterit, quia secundum uoluntatem dantis nummi sunt consumpti.
Therefore, if he has consumed them, although he may be liable to a personal action for recovery, he will nevertheless be able to use the defense of fraud, because the coins were consumed in accordance with the will of the giver.
§12.1.18.1Si ego quasi deponens tibi dedero, tu quasi mutuam accipias, nec depositum nec mutuum est: idem est et si tu quasi mutuam pecuniam dederis, ego quasi commodatam ostendendi gratia accepi: sed in utroque casu consumptis nummis condictioni sine doli exceptione locus erit.
If I should give to you as if making a deposit, and you should receive it as if it were a loan, it is neither a deposit nor a loan. The same is true if you should give money as if it were a loan, and I received it as if it were a gratuitous loan for the purpose of showing it. But in both cases, once the coins have been consumed, there will be room for a personal action for recovery without the defense of fraud.