[IDEM libro sexagensimo digestorum. ] §39.6.18.prMortis causa capimus non tunc solum, cum quis suae mortis causa nobis donat, sed et si propter alterius mortem id faciat: ueluti si quis filio uel fratre suo moriente donet Maeuio ea condicione, ut, si conualuerit alteruter eorum, reddatur sibi res, si decesserit, maneat apud Maeuium.
[THE SAME, from the sixtieth book of the Digests.] We acquire mortis causa not only when someone donates to us on account of his own death, but also if he does so because of the death of another: as when someone, upon the illness of his son or brother, donates to Maevius on the condition that, if either of them recovers, the property shall be returned to him, but if he dies, it shall remain with Maevius.
§39.6.18.1Si donaturus mihi mortis causa debitorem tuum creditori meo delegaueris, omnimodo capere uidebor tantam pecuniam, quanta a creditore meo liberatus fuero.
If, intending to make a donation to me mortis causa, you delegate your debtor to my creditor, I shall be deemed to have acquired in any case as much money as I am released from towards my creditor.
quod si ab eodem ego stipulatus fuero, eatenus capere existimandus ero, quatenus debitor soluendo fuerit: nam et si conualuisset creditor idemque donator, condictione aut in factum actione debitoris obligationem dumtaxat reciperet.
But if I stipulate from the same debtor, I must be considered to acquire only to the extent that the debtor was solvent; for even if the creditor and donor had recovered, he would recover at most the obligation of the debtor by a condictio or an action on the case.
§39.6.18.2Titia chirographa debitorum suorum Septicii et Maeuii donatura illis Ageriae dedit et rogauit eam, ut ea, si decessisset, illis daret, si conualuisset, sibi redderet: morte secuta Maeuia Titiae filia heres extitit: Ageria autem, ut rogata erat, chirographa Septicio et Maeuiio supra scriptis dedit.
Titia, intending to donate the written acknowledgements of debt of her debtors Septicius and Maevius to them, gave them to Ageria and asked her to give them to them if she died, but to return them to herself if she recovered. Death having followed, Maevia, the daughter of Titia, became her heir. Ageria, however, as she had been asked, gave the written acknowledgements of debt to the above-mentioned Septicius and Maevius.
quaeritur, si Maelluia heres summam, quae debebatur ex chirographis supra scriptis, petat uel ipsa chirographa, an exceptione excludi possit? respondit Maeuiam uel pacti conuenti uel doli mali exceptione summoueri posse.
It is asked, if the heir Maevia sues for the sum that was owed under the above-mentioned written acknowledgements of debt, or for the documents themselves, whether she can be excluded by an exception? He answered that Maevia can be barred either by the exception of an agreed pact or by the exception of fraud.
§39.6.18.3Qui hominem noxae nomine uel alias obligatum mortis causa acceperit, tantum cepisse intellegendus est, quanti is homo uenire potuisset.
He who has received mortis causa a slave bound on account of damage or otherwise, is to be understood to have acquired only as much as that slave could have been sold for.
idem in fundo qui obligatus est obseruari poterit, ut pretium excutiatur.
The same can be observed in the case of a tract of land which is mortgaged, so that its value is investigated.