[GAIUS libro quinto decimo ad legem Iuliam et Papiam. ] §34.9.10.prIn fraudem iuris fidem accommodat, qui uel id quod relinquitur uel aliud tacite promittit restituturum se personae quae legibus ex testamento capere prohibetur, siue chirographum eo nomine dederit siue nuda pollicitatione repromiserit.
[GAIUS, in the fifteenth book on the Lex Iulia et Papia.] He lends his support in fraud of the law, who, whether he has given a written acknowledgment on that account or promised by a bare agreement, tacitly promises that he will restore either what is left to him or something else to a person who is prohibited by law from taking under a will.
§34.9.10.1Si quis ei qui capere possit rogatus fuerit restituere et is mortis tempore prohibetur legibus hoc capere, non dubito quin, etsi deficit fideicommissum, apud eum tamen, qui rogatus est restituere, manere debet, quia nulla fraus eius interuenisse uidetur, nisi si in futurum casum fidem accommodauit, id est ut, licet capere legibus prohiberi coeperit, restituat.
If anyone has been requested to restore to a person who was capable of taking, and that person at the time of death is prohibited by law from taking this, I have no doubt that, although the fideicommissum fails, it must nevertheless remain with him who was requested to restore, because no fraud on his part appears to have intervened; unless he lent his support for a future event, that is, so that, although the person should begin to be prohibited by law from taking, he would still restore it.
§34.9.10.2Recte dictum est, si pater filii, quem in potestate habebat, tacitam fidem interposuerit, non debere id filio nocere, quia parendi necessitatem habuerit.
It has been rightly said that, if the father of a son whom he had in his power interposed a tacit trust, this ought not to prejudice the son, because he was under the necessity of obeying.