[MARCELLUS libro septimo digestorum. ] §24.1.49.prSulpicius Marcello.
[MARCELLUS, in the seventh book of the Digests.] Sulpicius to Marcellus.
Mulier, quae ad communem filium uolebat, qui in potestate patris erat, post mortem patris fundum peruenire, eum patri tradidit, uti post mortem restituatur filio.
A woman, who wished a tract of land to come to their common son, who was under the power of his father, after the father's death, delivered it to the father so that it should be restored to the son after his death.
quaero, an donatio tibi uideatur, ut nihil agatur, an ualeat quidem, sed mulieri potestas datur, si noluerit, eum repetere.
I ask whether you think this is a donation, so that nothing is accomplished, or whether it is indeed valid, but power is given to the woman to demand it back if she should change her mind.
respondit: si color uel titulus, ut sic dixerim, donationi quaesitus est, nihil ualebit traditio, idem si hoc exigit uxor, ut aliquid ex ea re interim commodi sentiret maritus: alioquin si solo eius ministerio usa est et id egit, ut uel reuocare sibi liceret uel ut res cum omni emolumento per patrem postea ad filium transiret, cur non idem perinde sit ratum ac si cum extraneo tale negotium contraxisset, hoc est extraneo in hanc causam tradidisset?
He replied: If, so to speak, a color or title was sought for a donation, the delivery will have no validity; the same applies if the wife intended this, that the husband should in the meantime receive some benefit from that property. Otherwise, if she merely made use of his service, and acted to the end that either she should be allowed to revoke it, or that the property, with all its profits, should afterwards pass through the father to the son, why should this not be just as valid as if she had contracted such a transaction with a stranger, that is, had delivered it to a stranger for this purpose?