[IDEM libro sexto decimo digestorum. ] §46.3.68.prSeruus decem dare iussus pupillo et liber esse, si heres sit pupillus siue tantum condicio in eum collata sit, an absente quoque tutore pupillo dando libertatem consequatur? moueris comparatione condicionis, quae constitit in facto, ueluti 'si pupillo seruierit', quae potest impleri citra interuentum quoque tutoris.
[THE SAME, in his sixteenth book of the Digests.] If a slave is ordered to give ten to a pupillus and be free, whether the pupillus is the heir or the condition is merely directed towards him, can the slave acquire his freedom by giving it to the pupillus even in the absence of his tutor? You are moved by the comparison with a condition which consists in an act of fact, such as "if he has served the pupillus", which can be fulfilled even without the intervention of a tutor.
et quid, inquis, si curatorem habeat et si furioso dare iussus sit, an curatori dando liberetur? et finge alicui fundum legatum, si dedisset pupillo furiosoue. et sciendum est in omnibus istis casibus tutori quidem uel curatori utiliter dependi, ipsis autem, id est furioso uel pupillo, non recte persolui, ne datio ex illorum inbecillitate pereat: nec enim hoc egit testator, ut, quoquo modo esset datum, expleta uideretur condicio.
And what, you say, if the pupillus has a curator, and if the slave was ordered to give to a madman, can he be released by giving to the curator? And imagine that a tract of land is bequeathed to someone, "if he has given to a pupillus or a madman." And it must be known that in all these cases, payment is indeed usefully made to the tutor or curator, but is not rightly paid to themselves, that is, to the madman or the pupillus, lest the giving perish through their incapacity; for the testator did not intend this, that in whatever manner it was given, the condition should be deemed fulfilled.