[IDEM libro tertio decimo responsorum. ] §39.6.42.prSeia cum bonis suis traditionibus factis Titio cognato donationis causa cessisset, usum fructum sibi recepit et conuenit, ut, si Titius ante ipsam uita decessisset, proprietas ad eam rediret, si postea superstitibus liberis Titii mortua fuisset, tunc ad eos bona pertinerent.
[THE SAME, Opinions, Book 13.] Seia, having transferred her property by delivery, had ceded it to her relative Titius for the sake of a donation, reserving the usufruct for herself, and it was agreed that, if Titius should die before her, the ownership should return to her, but if she should die afterwards, leaving children of Titius surviving, then the property should belong to them.
igitur si res singulas heredes Lucii Titii uindicent, doli non inutiliter opponetur exceptio.
Therefore, if the heirs of Lucius Titius claim the individual things, the plea of doli will not uselessly be opposed.
bonae fidei autem iudicio constituto quaerebatur, an mulier promittere debeat se bona, cum moreretur, filiis Titii restituturam.
But when a bonae fidei action was established, it was asked whether the woman ought to promise that she would restore the property to the children of Titius when she died.
incurrebat haesitatio non extorquendae donationis, quae nondum in personam filiorum initium acceperat.
There arose a hesitation of not extorting a donation, which had not yet taken a beginning in the person of the children.
sed numquid interposita cautione prior donatio, quae dominio translato pridem perfecta est, propter legem in exordio datam retinetur, non secunda promittitur? utrum ergo certae condicionis donatio fuit an quae mortis consilium ac titulum haberet? sed denegari non potest mortis causa factam uideri.
But is it not rather that, by interposing a caution, the prior donation, which had already been completed long ago by the transfer of ownership, is retained on account of the law given at the beginning, and a second donation is not promised? Was it therefore a donation under a certain condition, or one which had the purpose and title of death? But it cannot be denied that it seems to have been made mortis causa.
sequitur, ut soluta priore donatione, quoniam Seia Titio superstes fuit, sequens extorqueri uideatur.
It follows that, the prior donation having been dissolved, since Seia survived Titius, the subsequent one seems to be extorted.
muliere denique postea diem functa liberi Titii si cautionem ex consensu mulieris acceperint, contributioni propter Falcidiam ex persona sua tenebuntur.
Finally, when the woman subsequently died, if the children of Titius accepted a caution with the consent of the woman, they will be held in their own person for the contribution on account of the Falcidian law.
§39.6.42.1Cum pater in extremis uitae constitutus emancipato filio quaedam sine ulla condicione redhibendi donasset ac fratres et coheredes eius bonis contribui donationes Falcidiae causa uellent, ius antiquum seruandum esse respondi: non enim ad alia constitutionem pertinere, quam quae lege certa donarentur et morte insecuta quodammodo bonis auferrentur spe retinendi perempta: eum autem, qui absolute donaret, non tam mortis causa quam morientem donare.
When a father, placed in the extremity of life, had donated certain things to his emancipated son without any condition of restoration, and his brothers and co-heirs wished the donations to be contributed to the estate for the sake of the Falcidian law, I responded that the ancient law ought to be preserved; for the constitution does not pertain to other things than those which are donated under a certain law and, upon death following, are in a way taken away from the estate, the hope of retaining them being destroyed: but he who donates absolutely does not donate so much mortis causa as while dying.