[GAIUS libro octauo ad edictum prouinciale. ] §39.6.31.prMortis causa capitur, cum propter mortem alicuius capiendi occasio obuenit, exceptis his capiendi figuris quae proprio nomine appellantur.
[GAIUS, on the Provincial Edict, book 8.] An acquisition mortis causa takes place when an opportunity for acquiring arises on account of someone's death, with the exception of those forms of acquisition which are called by a specific name.
certe enim et qui hereditario aut legati aut fideicommissi iure capit, ex morte alterius nanciscitur capiendi occasionem, sed quia proprio nomine hae species capiendi appellantur, ideo ab hac definitione separantur.
For indeed, even he who acquires by the right of inheritance, legacy, or fideicommissum, certainly obtains an opportunity for acquiring from the death of another; but because these species of acquisition are called by a specific name, they are for that reason excluded from this definition.
§39.6.31.1Iuliano placet, licet soluendo non sit debitor, cui acceptum latum sit, uideri ei mortis causa donatum.
Julian is of the opinion that, even if a debtor to whom a release has been granted is insolvent, a donation mortis causa is deemed to have been made to him.
§39.6.31.2Sine donatione autem capitur ueluti pecunia, quam statuliber aut legatarius alicui condicionis implendae gratia numerat, siue extraneus sit qui accepit siue heres.
But an acquisition can also be made without a donation; for example, the money which a statuliber or a legatee pays to someone for the sake of fulfilling a condition, whether the person who received it is a stranger or the heir.
eodem numero est pecunia, quam quis in hoc accipit, ut uel adeat hereditatem uel non adeat, quique in hoc accipit pecuniam, ut legatum omittat.
In the same category is the money which someone receives for the purpose of either entering upon an inheritance or not entering upon it, and he who receives money for the purpose of waiving a legacy.
sed et dos, quam quis in mortem mulieris a marito stipulatur, capitur sane mortis causa: cuius generis dotes recepticiae uocantur.
Moreover, a dowry which someone stipulates from a husband in the event of his wife's death is certainly acquired mortis causa; dowries of this kind are called recepticiae.
rursus id, quod mortis causa donatur, aut in periculum mortis datur aut cogitationem mortalitatis, quod nos quandoque morituros intellegimus.
On the other hand, that which is donated mortis causa is given either in danger of death, or in contemplation of mortality, because we understand that we shall die at some time.
§39.6.31.3Si iusseris mortis causa debitorem tuum mihi aut creditori meo expromittere decem, quid iuris esset quaeritur, si iste debitor soluendo non sit.
If you have ordered your debtor, mortis causa, to promise ten to me or to my creditor by expromissio, the question arises as to what the law would be if that debtor is insolvent.
et ait Iulianus, si ego stipulatus fuerim, tantam pecuniam uideri me cepisse, in quantum debitor soluendo fuisset: nam et si conualuisset, inquit, donator, obligationem dumtaxat debitoris recipere deberet.
And Julian says: if I stipulated, I am deemed to have acquired only as much money as the debtor was solvent for; for, he says, even if the donor had recovered, he ought to recover only the obligation of the debtor.
si uero creditor meus stipulatus fuerit, tantam uideri me pecuniam accepisse, in quantum a creditore meo liberatus essem.
But if my creditor stipulated, I am deemed to have received as much money as I was released from by my creditor.
§39.6.31.4Per accepti quoque lationem egens debitor liberatus totam eam pecuniam, qua liberatus est, cepisse uidetur.
Also, an indigent debtor who has been released by acceptilatio is deemed to have acquired the whole amount of money from which he was released.