[ULPIANUS libro trigesimo tertio ad Sabinum. ] §24.1.32.11Quid ergo, si diuortium factum est, deinde matrimonium restauratur, et in diuortio uel mutata est uoluntas uel eadem durauit, restaurato tamen matrimonio et uoluntate donatoris reconciliata an donatio duret, si constante matrimonio donator decesserit? et potest defendi ualere.
What then, if a divorce was made, and then the marriage is restored, and in the divorce either the will was changed or it remained the same, yet when the marriage is restored and the will of the donor reconciled, does the donation continue if the donor dies while the marriage is lasting? And it can be defended that it is valid.
§24.1.32.12Quod si diuortium non intercesserit, sed friuusculum, profecto ualebit donatio, si friuusculum quieuit.
But if a divorce did not intervene, but a temporary estrangement, the donation will certainly be valid, if the estrangement has quieted down.
§24.1.32.13Si mulier et maritus diu seorsum quidem habitauerint, sed honorem inuicem matrimonii habebant (quod scimus interdum et inter consulares personas subsecutum), puto donationes non ualere, quasi durauerint nuptiae: non enim coitus matrimonium facit, sed maritalis affectio: si tamen donator prior decesserit, tunc donatio ualebit.
If a wife and husband lived apart for a long time indeed, but maintained toward each other the honor of marriage (which we know has sometimes occurred even among consular personages), I think the donations are not valid, as though the marriage continued; for it is not cohabitation that makes a marriage, but marital affection; if, however, the donor dies first, then the donation will be valid.
§24.1.32.14Si ambo ab hostibus capti sint et qui donauit et cui donatum est, quid dicimus? et prius illud uolo tractare.
If both have been captured by enemies, both the one who donated and the one to whom the donation was made, what do we say? And I want to treat that first.
oratio, si ante mors contigerit ei cui donatum est, nullius momenti donationem esse uoluit: ergo si ambo decesserint, quid dicemus, naufragio forte uel ruina uel incendio? et si quidem possit apparere, quis ante spiritum posuit, expedita est quaestio: sin uero non appareat, difficilis quaestio est.
The speech, if death happened beforehand to the one to whom it was donated, willed that the donation be of no moment; therefore, if both have died, what shall we say, perhaps in a shipwreck, or a collapse, or a fire? And if indeed it can appear who drew the last breath first, the question is settled; but if it does not appear, the question is difficult.
et magis puto donationem ualuisse et his ex uerbis orationis defendimus: ait enim oratio 'si prior uita decesserit qui donatum accepit': non uidetur autem prior uita decessisse qui donatum accepit, cum simul decesserint.
And I rather think that the donation was valid, and we defend this from these words of the speech; for the speech says, "if the one who received the donation died first." But the one who received the donation does not seem to have died first when they died at the same time.
proinde rectissime dicetur utrasque donationes ualere, si forte inuicem donationibus factis simul decesserint, quia neuter alteri superuixerit, licet de commorientibus oratio non senserit: sed cum neuter alteri superuixerit, donationes mutuae ualebunt: nam et circa mortis causa donationes mutuas id erat consequens dicere neutri datam condictionem: locupletes igitur heredes donationibus relinquent.
Accordingly, it will be said most correctly that both donations are valid if, perhaps, having made mutual donations, they died at the same time, because neither survived the other, although the speech did not contemplate those who die together; but since neither survived the other, the mutual donations will be valid; for also concerning mutual donations in contemplation of death, it was a logical consequence to say that the condictio was given to neither; they will therefore leave their heirs rich by the donations.
secundum haec si ambo ab hostibus simul capti sint amboque ibi decesserint non simul, utrum captiuitatis spectamus tempus, ut dicamus donationes ualere, quasi simul decesserint? an neutram, quia uiuis eis finitum est matrimonium? an spectamus, uter prius decesserit, ut in eius persona non ualeat donatio? an uter rediit, ut eius ualeat? mea tamen fert opinio, ubi non reuerterunt, ut tempus spectandum sit captiuitatis, quasi tunc defecerint: quod si alter redierit, eum uideri superuixisse, quia redit.
According to these things, if both were captured by enemies at the same time and both died there, but not at the same time, do we look to the time of captivity, so that we say the donations are valid, as though they died at the same time? Or neither, because while they were alive the marriage was ended? Or do we look to which of them died first, so that in his person the donation is not valid? Or which returned, so that his is valid? My opinion, however, is that where they did not return, the time of captivity must be looked to, as though they died then; but if one returned, he is seen to have survived, because he returned.
§24.1.32.15Qui quasdam res ex his quas donauerat legasset, quasdam non, non uidebitur ceteras noluisse ad uxorem pertinere: plerumque enim antea legat, postea donat: uel alia causa fuit legandi.
He who had bequeathed some of those things which he had donated, and some not, will not be seen to have wished that the rest should not belong to his wife; for generally he bequeathes beforehand and donates afterwards, or there was another reason for bequeathing.
§24.1.32.16Oratio non solum uirum et uxorem complectitur, sed etiam ceteros, qui propter matrimonium donare prohibentur: ut puta donat socer nurui uel contra, uel socer genero uel contra, uel consocer consocero qui copulatos matrimonio in potestate habent: nam ex mente orationis his quoque omnibus permissum est in eundem casum donare.
The speech embraces not only husband and wife, but also the others who are prohibited from donating on account of marriage; as for example, a father-in-law donates to his daughter-in-law or vice versa, or a father-in-law to his son-in-law or vice versa, or a joint father-in-law to a joint father-in-law, who have those joined in marriage in their power; for from the mind of the speech, all of these also are permitted to donate for the same event.
et ita et Papinianus libro quarto responsorum sensit: sic enim scribit: socer nurui uel genero donauit: postea filius eius uel filia constante matrimonio uita decessit: quamquam uitium donationis perseueret, tamen, si socer nullam quaestionem donationibus intulit, post mortem eius contra heredes orationis sententia uidetur interuenire: nam quae ratio donationem prohibuit, eadem beneficium datum implorabit. ut igitur ualeat donatio ista, Papinianus exigit, ut et filius eius qui donauit ante decesserit, et socer postea durante uoluntate.
And so also Papinian, in the fourth book of Opinions, felt; for he writes thus: "A father-in-law donated to his daughter-in-law or son-in-law; afterwards, his son or daughter died while the marriage was lasting. Although the defect of the donation persists, nevertheless, if the father-in-law brought no question against the donations, after his death the opinion of the speech seems to intervene against the heirs; for the same reason that prohibited the donation will implore the benefit given." Therefore, that this donation may be valid, Papinian requires both that his son of the one who donated died beforehand, and the father-in-law afterwards, while his will continued.
§24.1.32.17Si filius familias, qui castrense peculium habet uel quasi castrense, uxori donet, filii personam et mortem spectabimus.
If a son-in-power, who has military peculium or quasi-military, donates to his wife, we shall look to the person and death of the son.