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[001] 1I give that you give, as ‘I give you a Digest that you give me a Code,’ so that if
[002] I deliver a Digest, you are bound to deliver me a Code. Or if I say, ‘I give that
[003] you do,’ that is, ‘I give you a Code that you cause a Digest to be written for me.’ Or
[004] ‘I do that you give,’ that is, ‘I build you a house that you give me a Code.’ Or ‘I do
[005] that you do,’ that is, ‘I build you a hall that you build me a chamber.’ These gifts
[006] subsist under a modus and bind the contracting parties, so that if I give or do, you
[007] are bound to give or do as you agreed. But they do not enable me to recall what I
[008] have given if you are unwilling to do what you promised. 2I can only sue [to compel
[009] you] to do,3 unless it is otherwise agreed at the beginning. For to this gift subject to
[010] a modus a condition may be added at the outset, as if I say, ‘And if you do not give
[011] or do what you agreed that I may recall what I gave, or recover the charges
[012] incurred in connexion with what4 I did.’ If no condition is added, however, I
[013] cannot.5

If a gift is made subject to a condition.


[015] A gift may be made subject to a condition without6 a modus, as where I say, ‘I
[016] give you that thing if something be done’ or ‘not done,’ if the condition relates to
[017] the future, 7for though [they may be uncertain to us] the present and past are not
[018] in suspense as the future is; the condition either invalidates the obligation at once
[019] or defers it in no way.8 Then either9 the condition is possible or impossible.10 If
[020] possible and within the donee's power,11 as where I say, ‘I give you such a thing
[021] if you give me ten,’ the gift is good but suspended until the condition occurs,12
[022] so that if you claim the thing I can except that you have not given me ten. 13If
[023] the condition is impossible, as ‘I give you that thing if you touch the sky with your
[024] finger,’ the gift is not valid, [but if I say ‘if you do not touch the sky,’ it is valid],
[025] as though no condition had been imposed.14 A gift is not valid ab initio but in
[026] suspense if the condition is placed in the power of another, as ‘I give you this
[027] thing if Titius wishes me to,’ or ‘if he so decides,’ or ‘does such an act’, for unless
[028] he does so the gift will not be good. So if the condition is fortuitous, as ‘I give
[029] you such a thing if a ship arrives from Asia,’ or ‘if Titius is made consul;’ the gift
[030] will be in suspense because such gifts hang upon the vagaries of fortune.15 If the
[031] condition is mixed, as where it is partly within the donee's power and partly
[032] fortuitous,16 and disjunctive, as ‘I give you this thing if you give me ten [or a ship
[033] arrives from Asia], it suffices if one of the conditions is fulfilled. 17But if several
[034] conditions are annexed conjunctively, as ‘if this and that be done,’ they all must
[035] be satisfied; if disjunctively, (as said above) it is sufficient to comply with one or
[036] the other of them.18 19Some conditions are express and in negative words, as ‘if
[037] Titius is not heir be you heir,’20 or ‘if



Notes

1. Om: ‘secundum quod ... scilicet’

2. Om: ‘Sed’

3. Supra 69, infra 145, 182

4. ‘quam,’ OA, LA, Y, MG, CM

5. Infra 145, 182

6. ‘sine,’ OA; for gifts subject to a modus with condition: supra 69

7-8. Inst. 3.15.6: reading: ‘quia licet praesentia et praeterita [nos sint incerta] non sint in pendenti’; infra 285

9. ‘aut,’ as Fleta, iii, ca. 9

10. Azo, Summa Cod. 6.25, no. 2

11. Ibid., no. 6

12. Infra 73

13-14. Inst. 3.19.11: reading: ‘non valet donatio, [si autem si coelum digito non tetigeris valet donatio]’ as infra 286; cf. Fleta, iii, ca. 9; Gterbock, 117 n.

15. Azo, Summa Cod. 6.25, no. 8; 8.37, no. 18; cf. Woodbine in Yale L. Jour., xxxi, 839; infra 144, 286

16. Azo, loc. cit.

17-18. Inst. 2.14.11; Azo, Summa Cod. 6.25, no. 13; infra 141, iii, 144-5

19-20. Azo, Summa Cod. 6.26, no. 4


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