I
THE EDICT OF THE AEDILE, RESCISSION, AND THE ACTION FOR DIMINUTION
1 ULPIAN, Curule Aediles' Edict, book 1: Labeo writes that the edict of the curule aediles concerns the sales of things immovable as much as of those movable or animate. 1. The aediles say: "Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a runaway, a loiterer on errands, or still subject to noxal liability; all these matters they must proclaim in due manner when the slaves are sold. If a slave be sold without compliance with this regulation or contrary to what has been said of or promised in respect of him at the time of his sale, it is for us to declare what is due in respect of him; we will grant to the purchaser and to all other interested parties an action for rescission in respect of the slave. The purchaser, however, will have to make good in such cases all of the following: any deterioration in the slave after the sale and purchase which is attributable to the purchaser himself, his household, or procurator; anything born of or acquired through the slave since the sale; and anything else that accedes to the slave consequent upon the sale or any profits which the purchaser acquires through him. Equally, there will be due to the vendor any accessories which he himself may have provided. Again, vendors must declare at the time of sale all that follows: any capital offense committed by the slave; any attempt which he has made upon his own life; and whether he has been sent into the arena to fight wild animals. On these grounds, also we will give the action. In addition, we will grant the action if it be alleged that a slave has been sold, with deliberate wrongful intent, in contravention of our provisions." 2. This edict was promulgated to check the wiles of vendors and to give relief to purchasers circumvented by their vendors. It must, though, be recognized that the vendor is still liable, even though he be unaware of the defects which the aediles require to be declared. There is nothing inequitable about this; the vendor could have made himself conversant with these matters; and in any case, it is no concern of the purchaser whether his deception derives from the ignorance or the sharp practice of his vendor. 3. It must, however, be known that these provisions do not apply to sales by the imperial treasury. 4. But if some civitas make a sale of anything, this edict is operative. 5. It applies also to sales of the property of a pupillus. 6. If a defect in or disease of the slave be perceptible (and defects reveal themselves generally through symptoms), it may be said that the edict has no place; its concern is simply to ensure that a purchaser is not deceived. 7. It is to be noted that a definition of disease as an unnatural physical condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with health of body appears in Sabinus. Such condition may affect the whole body or only part thereof. (Tuberculosis and fever exemplify the former; blindness, even from birth, the latter.) Defect, he says, is very different from disease; stammering, for instance, is a defect rather than a disease. Personally, I am of opinion that the aediles employed a pleonastic expression to preclude any doubt. 8. So if there be any defect or disease which impairs the usefulness and serviceability of the slave, that is a ground for rescission; we must, however, bear in mind that a very minor flaw will not lead to his being held defective or diseased. Thus, a slight fever or an old quartan, which can now be ignored, or a trivial wound will entail no liability, if it be not declared; such things can be treated as beneath notice. So let us give examples of slaves who are genuinely defective or diseased. 9. The question is raised in Vivian whether a slave who, from time to time, associates with religious fanatics and joins in their utterances is, nonetheless, to be regarded as healthy. Vivian says that he is; for he says that we should still regard as sane those with minor mental defects; otherwise, he proceeds, the position would be reached that on this sort of ground, we would deny that slaves are healthy without limit, for example, because he is frivolous, superstitious, quick-tempered, obstinate, or has some other flaw of mind. The undertaking relates to physical, not mental, health. Still, says Vivian, it does happen that a physical defect affects the mind also and makes the slave thereby defective; it can happen that he becomes mentally deranged by reason of a fever from which he suffers. What happens in such circumstances? If the mental defect be such that the vendor ought to reveal it or reserve it and, although he may know of it, he does not declare it, he will be liable to an action on the purchase. 10. Vivian says further that although, at some time in the past, a slave indulged in Bacchanalian revels around the shrines and uttered responses in consonance therewith, it is still the case that if he does it no longer, there is no defect in him and there will be no more liability in respect of him than if he once had a fever; but if he persist still in that bad habit, cavorting around the shrines and uttering virtually demented ravings, even though this be the consequence of excess and thus a defect, it is still a mental, not a physical, defect and so constitutes no ground for rescission, because the aediles pronounce in respect of physical defects; however, such facts give occasion for the action on purchase. 11. Vivian says the same in respect of slaves who are excessively timorous, greedy or avaricious, quicktempered,
2 PAUL, Curule Aediles' Edict, book 1: prone to fits of depression,
3 GAIUS, Curule Aediles' Edict, book 1: impudent or wanton, hunchbacked, deformed, prone to the itch or covered with scales; the deaf and'the dumb are also included.
4 ULPIAN, Curule Aediles’ Edict, book 1: For all these defects, for which he says that rescission is not applicable, Vivian would give the action on purchase. 1. But if a physical affliction should have mental consequences, say that the slave raves in consequence of his fever or wanders through the city quarters, talking nonsense in the manner of the insane, there is, in such cases, a mental defect flowing from a physical one, and consequently, rescission will be possible. 2. Pomponius reports that there have been those who made reply that the edict does not apply to gamblers or wine bibbers, gluttons, impostors, liars, and the quarrelsome. 3. Pomponius, again, says that although a vendor is not required to produce a slave of full intellect, still if he sell one so silly or moronic that he is useless, there is a defect under the edict. Generally, the rule which we appear to observe is that the expression "defect and disease" applies only in respect of physical defects; a vendor is liable in respect of a defect of mind, only if he undertake liability for it; otherwise, not. Hence, the express reservation of the wandering or runaway slave; for their defects are of the mind, not physical. It is for this reason that there are those who say that animals prone to shy or kick are not to be accounted diseased; for such defects are of the mind, not the body. 4. All in all, if the defect be only one of the mind, there will be no rescission, unless the vendor has stated that such defect does not exist when, in fact, it does; an action on purchase, however, will lie, if the vendor, knowing of such defect of mind, should not reveal it. But if the defect be wholly physical or a combination of the physical and nonphysical, there is scope for rescission. 5. A rider has to be borne in mind, that is, that the general statement, disease, does not postulate a serious disease; as Pomponius says, this is no occasion for astonishment; for in the present context, there is no concern with what it is to which the specific disease is an obstacle. 6. Pomponius further says that not every disease gives ground for rescission-take the case of a minor inflammation of the eyes, a slight toothache or earache or a sore scarcely worthy of notice; equally, not any trivial feverishness will come within the edict.
5 PAUL, Sabinus, book 11: And just as there is a distinction between those defects which the Greeks describe as a malignant form of disease and those which they categorize as ills, disease, or sickness, so there is a distinction between these faults and a disease whereby the usability of a slave is reduced.
6 ULPIAN, Curule Aediles' Edict, book 1: Pomponius correctly says that this edict concerns not only chronic diseases but also those which are temporary in effect. 1. Trebatius says that impetigo is not a disease, if the slave can use normally the affected limb, and I think Trebatius to hold the correct view. 2. To me it appears the better view that a eunuch is not diseased, any more than one who, having one testicle,
is capable of procreation.
7 PAUL, Sabinus, book 11: But if a slave be a eunuch in such wise that he lacks a necessary part of his body, he is diseased.
8 ALPIAN, Curule Aediles' Edict, book 1: The question arises whether one whose tongue has been cut out is healthy. This problem is dealt with by Ofilius in respect of a horse. His opinion is in the negative.
9 ULPIAN, Sabinus, book 44: Sabinus says that a dumb slave is diseased; for it appears a disease to be without a voice; but one who speaks with difficulty or unclearly is not diseased; the slave whose speech is unintelligible, however, obviously is diseased to that extent.
10 ULPIAN, Curule Aediles' Edict, book 1: Ofilius, again, says that if the slave has lost a finger or suffered the laceration of some limb, even though the injury be healed, he will not be regarded as healthy, if his usefulness be diminished thereby. 1. I read Cato to have written that a slave who has had a finger or toe cut off is diseased; this is true, subject to the distinction already adumbrated. 2. Even when he has more, whether fingers or toes, if the loss does not impede his utility, there is no question of rescission; the issue is, therefore, not how many he has lost but, whatever their number, whether he can still be put to use. 3. It has been asked whether a slave suffering from short sight is healthy. I think him a case for rescission. 4. It is accepted that a dim-sighted person is diseased, that is, one who sees neither by day nor by night, who is so styled by the Greeks; there are those who think this to be the condition of one who, even when light be brought, sees nothing. 5. It has been asked whether those are healthy who stammer, lisp, are inarticulate, speak with difficulty, ramble, or rave. I think that they are.
11 PAUL, Sabinus, book 11: One who lacks a tooth is not diseased. Most men lack some tooth or other but are not thereby diseased. The more so, since we are born without teeth and are not treated as any the less healthy until we cut teeth; any other view would mean that no old man would be healthy.
12 ULPIAN, Curule Aediles' Edict, book 1: One with warts or with polypuses in the nose is diseased. 1. Pedius writes that a man who has one eye or one jaw bigger than the other is healthy, so long as he can use both properly; for he says that a discrepancy between jaws, eyes, or arms is no ground for rescission if it does not affect the slave's ability to perform his duties. But imbalance, or the fact that one leg is shorter than the other, can be a hindrance to such performance; and so a slave, thus affected, is for rescission. 2. If a slave speak gutturally or have protruding eyes from birth, he is regarded as healthy. 3. It should also be known that left-handedness is neither a defect nor a disease, unless the slave use his left hand by reason of the weakness of the right, such a slave is not left-handed but defective. 4. It has been asked whether one whose breath smells is healthy. Trebatius says that it is not a disease that one's breath smells like that of a goatherd or scabrous person for this is an accident of exhalation. But if it be due to a bodily defect, such as a liver- or lung-complaint or something - similar, the slave is diseased.
13 GAIUS, Curule Aediles' Edict, book 1: Again, one with a limp is diseased.
14 ULPIAN, Curule Aediles' Edict, book 1: It has been asked whether a slave-woman who regularly produces stillborn issue is diseased. Sabinus says that she is, if this be due to some defect in her private parts. 1. All are agreed that a pregnant woman, the object of a sale, is healthy; for it is the highest and particular lot of woman to conceive and conserve what she conceives. 2. A woman in labor is also healthy, unless some extrinsic factor affect her body with some form of ill-health. 3. Where a barren woman is concerned, Caelius says that Trebatius took a distinction: If she be naturally barren, she is healthy, but not if her infertility be due to some bodily defect. 4. A question has similarly been raised about the bed wetter. And Pedius says that a man is not to be adjudged diseased because, being asleep, in drink, or too lazy to get up, he wets his bed; but if it be a disease of the bladder which prevents his continence, his sale may be rescinded on the ground of that disease, but not on the ground that he wets the bed. Pedius is right. 5. He also says that if some slave's birthmark be removed, the possibility of rescission is removed rather than presented, since the disease is reduced. I myself think that if the disease be no more, there is no case for rescission, but if the disease continue, rescission is possible. 6. If a man be born with fingers joined together, he is not regarded as healthy, at any rate if this impede the use of his hand. 7. It is generally agreed that a woman who is so tight that she cannot fulfill the function of a woman is not deemed healthy. 8. The question arises whether a sufferer from swollen tonsils can be the object of rescission as being defective.
My view is that if the tonsils be what I have in mind, that is, such swellings of the throat as the slave had from birth and which cannot now be cut out, the slave whose tonsils are a problem is defective. 9. If the vendor expressly exclude some disease and, for the rest, declare the slave healthy or give security in respect thereof, the agreement made is to be observed (for there is no return for those who forego their redress) unless the vendor, knowing of the disease, deliberately kept silent about it; in such a case, the defense of fraud will be available. 10. If a disease be not expressly excluded but be such as to be apparent to all (as when the slave be blind or have a dangerous and manifest scar on his head or some other part of his body), there is no liability on that account, says Caecilius, any more than if it had been expressly excluded; for it has to be accepted that the aediles' edict is concerned with those defects which a purchaser might not detect or be able to detect.
15 PAUL, Sabinus, book 11: One who menstruates twice within a month is not healthy any more than one who never menstruates, unless this latter be by reason of her age.
16 POMPONIUSS, Sabinus, book 23: A slave so cured that he is restored to his original state is to be regarded as though he was never afflicted with disease.
17 ULPIAN, Curule Aediles' Edict, book 1: Ofilius tells us what a fugitive is: He is one who remains away from his master's house for the purpose of flight, thereby to hide himself from his master. 1. But Caelius says that he, too, is a fugitive who leaves with the intention of not returning but, changing his mind, returns; for, he says, no one purges his offense by remorse. 2. Cassius says simply that a fugitive slave is one who with deliberate intent leaves his master. 3. And we find in Vivian that a fugitive is to be so determined from his attitude of mind and not merely from the fact of his flight; for a slave who flees from an enemy or brigand, a fire, or the collapse of a building, certainly runs away, but he is not a fugitive. In the same way, a slave who runs away from the instructor to whom he was entrusted for training is not a fugitive, if the reason for his running away be the intolerable treatment which he receives. Vivian says the same, if that be the reason for his running away from someone who borrowed him. He says the same if the slave were savagely used. All this applies to those who, having fled, return to their masters; but, says Vivian, if they do not return, then they are unquestionably fugitives. 4. The same Vivian further says that when consulted about a slave who hid in the house until he could find the opportunity for flight, Proculus said that though he could not be regarded as already in flight, being still in the house, he was nonetheless a fugitive; but if he concealed himself until his master's wrath abated, he would not be a fugitive any more than one who, having in mind that his master wished physically to chastise him, betook himself to a friend whom he induced to plead on his behalf. It cannot even be said that a slave is a fugitive who has come to the stage that he hurls himself from a height (though one could declare a fugitive one who goes up to a high point of the house to cast himself down); rather does he desire to end his life. Vivian also says that the common assertion, particularly of the ignorant, that a slave who stays away for a night is a fugitive, if it be without his master's consent, is not true; one has to assess the man's purpose in so acting. 5. Vivian goes on to say that if a slave leave his master and come back to his mother, the question whether he be a fugitive is one for consideration; if he so fled to conceal himself and not to return to his master, he is a fugitive; but he is no fugitive if he seeks that some wrongdoing of his may be better extenuated by his mother's entreaties. 6. Caelius also writes that if you buy a slave who throws himself into the Tiber, he will not be a fugitive so long as his only motive was the desire to end his life; but if he first planned to run away and then, changing his mind, flung himself into the Tiber, he would be a fugitive; he says the same of a slave who throws himself from a bridge. And all that Caelius says is correct. 7. Caelius further says that if your slave in running away from you takes with him his vicarius and the latter goes unwillingly or not knowing what it is all about and seeks the opportunity to return, he will not be deemed a fugitive; but if he knew at the time of flight what was going on or later became aware of it and chose not to return to you when he could do so, the vicarius would himself be a fugitive. He thinks the same to apply to a slave abducted by a kidnapper. 8. The same Caelius says that if a slave on a country estate leaves the house with the intention of running away but is caught by someone before he has left the confines of the estate, he is a fugitive; for his intention makes him so. 9. He further says that a slave who takes a step or two in flight or, indeed, begins to run but cannot escape his master who is in pursuit is a fugitive. 10. As he rightly says, flight is a form of liberty in that the slave is for the present relieved of his master's power. 11. A slave, the object of a pledge, indeed has the debtor as his owner, but should he take himself off when the creditor enforces his right, he will be deemed a fugitive. 12. In Labeo and Caelius, the question is raised whether a slave who seeks asylum or betakes himself to a place frequented by those who declare themselves for sale is a fugitive; I think that a slave who does what it is adjudged permissible to do publicly is not a fugitive. No more do I regard as a fugitive a slave who flees to the emperor's statue; for he does not so act with the intention of running away. Likewise, I think of a slave who seeks asylum or other sanctuary, because he does not do so with the intention of running away; but if he first runs away and then takes shelter, he does not cease to be a fugitive. 13. Caelius again writes that in his opinion, a slave is a fugitive who takes himself somewhere whence his master cannot recover him and still more so one who repairs to a place from which he cannot be removed. 14. Labeo defines a wanderer as a petty fugitive and, conversely, a fugitive as a great wanderer. However, if we wish to be accurate, we define a wanderer as one who does not indeed run away but frequently indulges in aimless roaming and, after wasting time on trivialities, returns home at a late hour. 15. The following case is recorded in Caelius: A freedman was living with his patron in such circumstances that the whole premises were locked with one key; a slave of the freedman was beyond the latter's quarters but still within the patron's establishment with the intention of not returning to him and concealed himself for the whole night; Caelius says that he should be deemed a fugitive. Of course, says Caelius, if the establishment was not of the type above indicated and the freedman dwelt in a room to which there was common and general access to and from several rooms, the answer would be different; Labeo takes the same view. 16. Caelius again says that a slave, sent off to a province by his master, who learns that the master is dead and has emancipated him in his will and who continues in the same office but acting for himself as a freeman is not a fugitive; he adds that he would not be a fugitive even if he falsely declared himself free because it is not done with the object of flight. 17. When the aediles say, "he is not free from noxal liability," that means, not that the vendor must declare the slave not to have committed a delict, but that he must declare that the delictal liability has been discharged, that is, that no noxal action will lie in respect of the slave. Hence, if he did commit a delict which no longer remains, he is free from noxal liability. 18. Noxal liability derives from private delicts in respect of which noxal actions are granted, not from offenses entailing public prosecution; special provision is made later concerning capital offenses. Noxal actions result in a pecuniary penalty, where a master prefers not to hand over the slave in noxal surrender but rather to accept the award of the court. 19. If the slave be such that imperial rulings preclude his ever being manumitted or if he has been sold by his master in fetters or if he be sentenced by some authority or if he is to be exported, it is absolutely proper that this should be declared. 20. If a vendor asserts that the slave has some quality which he has not or that he has not some quality which he has, he will be liable; he might, for instance, say that the slave is not a thief when he is, or that he is a craftsman when he is not. Such a vendor in not making good his assertion is held to contravene his statement or promise.
18 GAIUS, Curule Aediles' Edict, book 1: If the vendor makes some assertion about a slave and the purchaser complains that things are not as he was assured that they were, he can proceed by the action for rescission or that for a diminution in which an assessment is made. Suppose that the vendor says that the slave is loyal or hardworking or diligent or vigilant or that through his thrift, he has acquired a peculium and, on the contrary, he is fickle, wanton, slothful, sluggish, idle, tardy, or a wastrel. All these expressions of the vendor are not to be charged against the vendor with absolute literalism but should be reasonably interpreted. Hence, if he declare the slave to be loyal, one does not expect the absolute gravity and fidelity of a philosopher; if he declare him hardworking and watchful, he is not required to work all day and all night. All these qualities should be expected within reason and we hold the same of other assertions of the vendor. 1. If a vendor say that the slave is an excellent cook, he must supply a leader of his profession; but one who says simply that he is a cook meets his obligations, even though the slave be but a mediocre cook. The same applies to other trades and crafts. 2. In like manner, if he say simply that the slave has a peculium, it is enough that he has even the most exiguous peculium.
19 ULPIAN, Curule Aediles' Edict, book 1 We have, however, to realize that there are statements that a vendor might make which he does not have to validate, namely, those which simply extol the slave; for instance, that he is thrifty, upright and obedient. In the words of Pedius, there is a great difference between what is said to commend the slave and an undertaking to make good what is stated. 1. The vendor would clearly be liable on an assertion that the slave is not a gambler or a thief or that he has never sought refuge at the emperor's statue. 2. We distinguish a statement from a promise in the following manner: A statement is that which is declared simpliciter and ends therewith; but promise can relate to a mere undertaking, a formal promise, or a contractual undertaking by sponsio. Accordingly, one who gives a sponsio in these matters, when the question is put to him, becomes liable to an action both on the stipulation and for rescission; and there is nothing strange in the fact that one liable to the action on purchase should be liable to the action for rescission. 3. Only those utterances are regarded as statements and promises which are so expressed that they must, be made good, not those which are merely thrown out. 4. This too must be known: If the vendor promise or state that the slave is a craftsman, he is not required to provide a master craftsman but one of adequate experience; so that the purchaser is not to get one of consummate skill nor yet one unlearned in his craft, it is enough that he be a run-of-the-mill craftsman. 5. The aediles then say: "We will give an action to the purchaser and all other interested parties." They thus promise an action to the purchaser and his universal successors. By "purchaser," we understand one who buys for a money price. But if there be an exchange or barter, then each party is to be treated as both vendor and purchaser, and so each can proceed under this edict. 6. The period for the action for rescission is six months of business days; but if the slave be not returned but the action for diminution be brought, a year of business days is open. The time for rescission runs from the date of the sale or that on which the statement or promise was made.
20 GAIUS, Curule Aediles' Edict, book 1: If, though, the statement intervene before the time of sale and the stipulation be made some days after, Caelius Sabinus writes that time runs from the earlier date. And that, he says, is as soon as the slave is sold so that action can be brought as from then.
21 ULPIAN, Curule Aediles' Edict, book 1: To rescind is to bring it about that the vendor has again what he previously had; and since this is effected by returning the thing, the process is called rescission, as being a return. 1. When a slave is returned to the vendor by a purchaser, Pomponius says that undertakings in respect of fraud are required, so that guarantees are necessary against the possibility that the purchaser may have pledged the slave or that, at the purchaser's instigation, the slave may have been guilty of theft or of inflicting damage. 2. Pomponius further says that sometimes such guarantees are requisite on a twofold basis in respect of both the past and the future; suppose, say, that the purchaser or his procurator accept a judgment in respect of the slave whom he now returns, whether because he was the defendant or because he himself brought proceedings in respect of the slave. He also says, however, that security is to be given that if the purchaser be condemned or give something, there being no element of fraud in the matter, this must be made good to him and, equally, if he received anything from proceedings which he himself brought and, through his fraud or remissness, none of it remains, he must make that good to the vendor. 3. Pomponius goes on to say that a cautio for the future is required where a vendor sells a slave, knowing his defects, and is condemned in this action, although, at the time, the slave is, through no fault of the purchaser, a runaway; for in such a case, the purchaser should give a cautio that he will go after the slave and, having regained his power over him, restore him to the vendor.
22 GAIUS, Curule Aediles' Edict, book 1: as also that neither he nor his heir will prevent the vendor from holding the slave.
23 ULPIAN, Curule Aediles' Edict, book 1: Now when rescission is effected, if the slave has been reduced in value, whether mentally or physically, by the purchaser, the latter will have to make this good to the vendor; illustrations would be the debauching of the slave or the fact of the purchaser's cruelty making him a fugitive. Pomponius thus says that, whatever the ground of his deterioration, it is a matter for the judge to quantify, and his estimate will be due to the vendor. But if the slave be returned without legal proceedings but the purchaser be unwilling to make good these other matters of which we have spoken, the vendor will have the action on sale. 1. The aediles direct that any acquisitions either way shall be restored so that when the sale is ended, neither party obtains more than he would have had if the sale had never been concluded. 2. An exception to this is the slave who commits a capital offense. To commit a capital offense is to be guilty of wrong which could be punished by death. The earlier jurists visited what was a wrong, in fact, with a penalty. We now require deliberate intent and wickedness for a capital offense; so that if the slave commit the wrong in error or by accident, the edict does not apply. Pomponius, accordingly, says that neither an impubes nor a lunatic can be thought capable of a capital offense. 3. Also excepted is the slave who does something to end his life. He is deemed a bad slave who does something to remove himself from human affairs, for example, he strangles himself or drinks a poisonous potion, casts himself from a height, or does something else in the hope of resulting death; it is as though there is nothing that he would not venture against others, who dares to do it against himself. 4. If a slave or son-in-power make a sale, the aedilician action lies against the master or head of household to the extent of the peculium; for although these actions are deemed penal, nevertheless they stem from contract, and so it must be held that they lie also in respect of transactions of those in another's power. Equally, if a daughter-in-power or a slave-woman sell something, it has no less to be said that the aedilician actions lie. 5. These actions stemming from the edict also lie against heirs, generally. 6. Again, if one acting in good faith as my slave (whether a freeman or the slave of someone else) make a sale, it can be said that this edict covers them also. 7. Julian says that the decision in an action for rescission should be that both parties, that is, vendor and purchaser, be restored, in effect, to their original positions. 8. Hence, if the slave steal from his purchaser or from someone else, whoever it be, so that the purchaser has to make amends for the theft, the return of the slave to the vendor will not be directed, unless the latter indemnify the purchaser. What, then, says Julian, if the vendor is not prepared to take the slave back? He says that he is not required to make good anything else but will be condemned for no more than the amount of the price; the purchaser, he says, has to bear the loss that he incurred through his own fault because, when he could have delivered the slave in noxal surrender, he preferred to submit to an assessment of damages. In my view, Julian's opinion has a lot of good sense. 9. When a slave is thus returned, any acquisition that the purchaser has made through him or which he has not made by reason of his own fault is also to be restored: not only profits that he personally takes or remuneration that he receives from the slave himself or the slave's hirer but also anything received from the vendor, on account that he gave the slave to him late; again, the purchaser must make over any profit that he receives from some other possessor of the slave, as also anything that he receive by way of profit; the same holds if some legacy or inheritance has come to the slave. For this purpose, it is irrelevant whether the vendor would or would not have made these acquisitions, if he had not sold the slave; let us suppose that he would not have been able to take anything under the will that does not redound to his detriment. Pedius, indeed, thinks that we do not have to consider the intention of the testator in making the slave his heir or a legatee because, even supposing him never to have been sold, the purchaser would derive no benefit therefrom; conversely, says Pedius, if it be advanced that the slave was instituted heir with the vendor in mind, still we would have to say that a purchaser who does not choose to return the slave will not have to give up the inheritance to the vendor.
24 GAIUS, Curule Aediles' Edict, book 1: It may be stated generally that it is deemed just that there should be returned to the vendor anything that the purchaser acquires through the slave other than what is so acquired through the purchaser's own property.
25 ULPIAN, Curule Aediles' Edict, book 1: The aediles require the buyer to make good any deterioration in the slave, but only that occurring subsequent to the sale and delivery; he bears no liability in the action for anything happening before then. 1. Accordingly, whether the purchaser himself, his household, or his procurator produce the deterioration, he is liable to an action. 2. The term "household" includes all who are in a condition of servitude to him, be they freemen in the honest belief that they are his slaves or, in fact, the slaves of another, and also those who are in his parental power. 3. A procurator is mentioned in relation to this action. But Neratius says that "procurator" does not mean anyone at all, but one entrusted with general administration of his principal's affairs or one charged with the transaction which has reduced the slave's value. 4. Pedius says that it is but just that the purchaser should be liable only for what the slave has suffered at the hands of his procurator or household which he would not have suffered had he not been sold; but for what he would have endured if he had been unsold, if it was done by one of his slaves, the purchaser may surrender that slave noxally; if by his procurator, he will have only to cede to the vendor his actions against the procurator. 5. What if it be through remissness, not deliberate intent, on the part of the purchaser that the slave has deteriorated? He is equally to be condemned. 6. Deterioration can be not only physical but can also relate to defects of disposition; for instance, through following the example of his fellow slaves in the purchaser's household, he may have become a gambler, a wine-bibber or a wanderer. 7. It is, though, to be remembered that the purchaser cannot noxally surrender his own slave on this sort of ground; for he does not make amends in such case for the act of his slaves or procurator. 8. And it must further be borne in mind that the purchaser must make good all those things which are set out in the edict of the aediles if they occurred before joinder of issue. Therefore it is necessary to have them set out so that if any of them occurred before joinder of issue it may be made good. But, after joinder of issue, everything pertaining to the return of the slave comes into account, possible profits through him, deterioration of him, and the like. Once the judge has been appointed, it is his duty to ascertain all the matters which are pertinent to the action; but what precedes the launching of the proceedings is not strictly his affair unless it be expressly brought into issue. 9. The edict further adds: "Whatever money be paid in respect of the slave or given by way of accession, is not returnable; and there will be no release from any debt over which one is under obligation in the matter." 10. The course of proceedings provided by the aediles is that the purchaser should first make good to the vendor all that is set out above and thereafter recover the price.
26 GAIUS, Curule Aediles' Edict, book 1: Let us consider whether it is not unfair that the purchaser should be obliged to restore the slave and submit to the action on a judgment when he in the interim receives nothing because of the vendor's lack of means; would not the matter be better ordered, if the purchaser were to give an undertaking that if he receive his money within a specified period, he will return the slave?
27 ULPIAN, Curule Aediles' Edict, book 1: The purchaser is to recover the money that he paid for the slave and any accessions. We interpret this to mean not only the price which the vendor got and interest, but anything laid out in respect of the purchase. But this is to be deducted only if the outlay was at the vendor's wish; if it be asserted that any such expense was incurred by the purchaser by his own will, that does not come into account; nor can he demand what someone, by his own choice, gave the vendor. Now what if a payment was made in respect of taxes which were levied on the purchaser? That, we say, is to be restored; for the purchaser is to be fully indemnified.
28 GAIUS, Curule Aediles' Edict, book 1: Should the vendor not give an undertaking on the matters contained in their edict, the curule aediles promise against him an action for rescission within two months and an action for diminution within six.
29 ULPIAN, Curule Aediles' Edict, book 1: It should be known that if the purchaser does not make good to the vendor what is required in this action, the vendor will not be condemned to him; but if the vendor similarly fails to make good to the purchaser, he will be condemned to him. 1. It is also due to the purchaser that he be discharged from any debt for which he is under obligation, whether to the vendor himself or to some other person. 2. Condemnation is for what the thing is worth. Can it then exceed the actual price or not? Condemnation will be for the price and accessions. Should the purchaser receive interest, as being entitled to get what the transaction has been worth to him, especially as he himself restores any profits? He will certainly receive interest. 3. If he has suffered some loss or incurred expense for the slave, the purchaser will recover therefor at the judge's discretion, not, however, as Julian says, so that the vendor will be condemned to him in respect of these heads of claim as such, but on the footing that he will not be required to return the slave to the vendor until he himself has been indemnified.
30 PAUL, Curule Aediles' Edict, book 1: Again, if a purchaser accept proceedings in the matter of the return of a slave or, indeed, himself bring an action in respect of him for that purpose, each of the parties must undertake that if he be fairly condemned for anything or if he receive anything through the proceedings or dolosely fail to receive it, that will be restored. 1. The purchaser can recover necessary expenses in curing the slave, incurred after the joinder of issue; prior expenses must be specifically itemized says Pedius; Aristo says, though, that the slave's food does not come into account for he was in the purchaser's employ.
31 ULPIAN, Curule Aediles' Edict, book 1: But if the vendor should refuse to take the slave back, he [Julian] says that he is not to be condemned for more than the price. For any damage he has suffered on account of the slave, we simply allow the purchaser to retain him physically. Though the vendor can avoid making reparation for these things, he will not escape having to make good the price and whatever goes with the price. 1. If the vendor proclaim or promise that the slave is not a thief, he will be bound by his promise if the slave should commit theft; in the present context, we regard as a thief not only one who steals from a stranger but also one who steals from his master. 2. If a slave-woman be the object of rescission, there must be returned with her any issue born to her after the sale, whatever their number. 3. And if perchance a usufruct should have been added to the ownership, that must unquestionably also be returned. 4. What do we say of any peculium which the slave acquires while with the purchaser? If it comes from the purchaser's patrimony, it must stay with the purchaser, but if it comes from any other source, it must be handed over to the vendor.5. Suppose that the purchaser has several heirs; then, we have to consider whether all must agree to a rescission. Pomponius says that all must agree and appoint one of themselves procurator so that the vendor does not incur harm by receiving his share of the slave from one and being required to pay to another a part of the price for the slave's not being worth that price. 6. He says further that if the slave be dead or already returned, each of the heirs can legitimately sue for his share; the heirs will recover the price in proportion.They will equally be liable in proportion for any profits or accessions to or deterioration in the slave, unless it be such as does not admit of apportionment, say, the issue of a slave-woman. Over such issue, the same rule is observed as applies to the sale of their mother, and we do not accept that she could be partially returned. 7. Then Marcellus writes that if a slave owned in common buy a slave and the question of rescission arises, one of the co-owners cannot return the slave, so far as his share in the slave purchaser is concerned, any more than, as he puts it, when the purchaser has several heirs and they do not unanimously agree to rescission and return of the slave. 8. Marcellus further says that one of the co-owners cannot, by the action on purchase, require the vendor to make partial delivery to him, when he pays part of the price; the same, he says, holds true for purchasers; for the vendor retains the object of the sale by way of pledge until the purchaser gives him satisfaction in the matter. 9. Then Pomponius says that if one of the heirs, his household, or his procurator diminish the slave in value, whether by accident or by design, that heir will properly be liable in full at the judge's discretion, and that this is the more appropriate when all of the heirs have appointed one of their number as procurator in legal proceedings. In such a case, if it be the fault of one heir that the slave is reduced in value and redress be made in respect thereof, the other heirs can have the action for dividing the inheritance against that heir, because he is the reason why they suffer loss and are not able to make a return of the slave. 10. If the vendor should have several heirs, the slave can be returned in the ratio of the hereditary proportion of each. The same applies if a slave, the common property of several, be sold. If one slave be sold by several owners or several be sold by one or if several slaves be bought from one vendor, the better solution is that if they appeared as multiple vendors of the slave, return must be made to them en bloc; but if individuals buy a share in the slave, it is rightly said that one may claim for rescission while another proceeds for a diminution in the price. Again, if several purchasers each buy their own share of the slave from a single vendor, then each can take proceedings in respect of his own share; but if they buy the slave as a whole, each must restore him as a whole. 11. If the slave to be returned be dead, the question arises whether his death be due to the fault of the purchaser, his household, or procurator; for if that should be the case, the slave is to be treated as though still alive; and all is to be made good that would have to be if he were still alive. 12. When we speak of negligence in this context, we mean any negligence, not only that which is gross. In consequence, it has to be said that whatever the occasion the purchaser provided for the slave's death, he is liable; so also if he did not summon a doctor so that the slave might be healed, or inflicted an ill on him, through his own fault. 13. But what we have said applies if the slave die before issue is joined; if, however, it be alleged that the slave died after that stage, it will be for the judge to decide the manner of his demise. Pedius also is of the view that what happens after joinder of issue is a matter for the judge's deliberation. 14. What we have said regarding a procurator holds good also in respect of a tutor, curator, or anyone else who, by virtue of his duties, intervenes for a third person; Pedius so writes and adds that the principal is not unjustly required to undertake that there will be no negligence on the part of those charged by him with the administration of affairs. 15. Pedius, again, says that the term "household" includes sons-in-power; his view was that the plaintiff in an action for rescission should make good the deeds of the members of his household. 16. If the purchaser brings the action for diminution on the ground that the slave has run away and subsequently sues because he is diseased, for how much should judgment be given? That this action may be brought more than once, there is no question; but Julian says that the conduct of proceedings must be such that the purchaser does not make a profit and recover the value of the thing twice over. 17. An actio in factum lies to recover the price, if the slave be returned; in this action, the question is not raised whether the slave be such that there were grounds for his return, only whether he has been returned; and there are good reasons for this. It would be unfair that once the vendor by taking him back acknowledged that the slave was such as should be returned, inquiry should be made still, whether he should or should not have been returned; nor is there any inquiry whether he was returned within the set period for such return. 18. The one thing which this action requires is that the slave be returned; unless he be returned, the action does not lie, even though there be an informal agreement for his return. Accordingly, an agreement for return does not give rise to this action, only actual return of the slave. 19. There must, though, be restored through this action what went with the slave in the sale. 20. Since the stipulation for double the price is customary, it is further accepted that the purchaser can bring the action on purchase, if the vendor does not make that stipulation in respect of the slave; for those matters which exist by practice and custom come within actions based on good faith. 21. Those selling slaves should declare their nationality when making the sale; for the slave's nationality may often induce or deter a purchaser; therefore, we have an interest in knowing the nationality; for there is a presumption that some slaves are good, coming from a race with no bad repute, while others are thought bad, since they come from a notorious people. If, then, the slave's nationality be not declared, an action will be given to the purchaser and to all interested parties whereby the purchaser may return the slave. 22. If the slave be sold on the terms that he may be returned, if he does not prove satisfactory within a specified period, that agreement is to be honored. But if no period be specified, the purchaser will have an actio in factum for rescission within sixty business days, no more. If, though, it be agreed that rescission be possible without limit, I think that such an agreement is valid. 23. If the prescribed sixty days should have elapsed, an action will be given, after investigation of the matter; such investigation will be directed to such issues as whether default was due to the vendor, whether there was no one available to whom return could be made, and whether there was some good reason why the slave, who has proved unsatisfactory, was not returned in the prescribed period. 24. Now in these actions, all must be complied with which has been stated, concerning profits, accessions, and issue, and concerning the return of a deceased slave. 25. The jurists have taken the view that what accedes to the thing purchased is part of the sale.
32 GAIUS, Curule Aediles' Edict, book 2: What has been earlier said, namely, that the vendor is required to declare defects and diseases and the other matters set out and that, moreover, the slave is not within any of these provisions, as he promises, applies also where the slave is sold as an accessory to something else so that he is required to make the same declarations and promises. This must be held to apply not only in the case where, say, the slave Stichus is expressly stated to go with a piece of land but also where all the slaves on the land are to be part of the sale of the land.
33 ULPIAN, Curule Aediles' Edict, book 1: Accordingly, Pomponius says that it is just that what is stated to be an accessory to the sale should be made good in full, just as the principal object of the sale; for the action on purchase lies at civil law for accessories to be intact, as, for instance, if wine jars be declared to go with an estate. But this applies where a specific thing is stated to be an accessory. If a slave be sold with his peculium, the vendor does not have to vouch the health of any slaves forming part of the peculium, because he did not say that specific things would be necessary to the slave, the object of sale, but he would have to furnish the peculium, such as it is, and here, as generally, he does not have to provide a specified amount of peculium. Pomponius adopts the same reasoning where the inheritance or peculium of a slave is sold; the aediles' edict has no operation in respect of the individual elements of the inheritance or peculium. He says the same when land is sold complete with its equipment and there are slaves among the equipment. I think this view sound, unless the parties be said to have made some special contrary agreement. 1. If the thing sold be returned, a slave accessory to the thing must also be returned, even though there be no flaw in him.
34 AFRICANUS, Questions, book 6: [Julian] says that when several slaves of the same kind, actors, for instance, or a chorus, are sold, it is important to know whether the price is settled as for the group as such or per individual; so that sometimes a single sale is contracted, sometimes several sales; this is relevant to the question whether, when one of them be defective or diseased, only he or all are to be returned. 1. It is sometimes the case that even though the price be fixed per individual, there is a single sale so that all may or must be returned because of a defect in one of them; this is so when it is obvious that there would be no sale or purchase unless all went together, as is usually the case with a troupe of actors, a four-horse team, or matched mules; it would be to the advantage of neither party to have other than the full complement.
35 ULPIAN, Curule Aediles' Edict, book 1: Healthy slaves are generally returned on account of those who are diseased when they cannot be separated without great inconvenience or affront to family ties. Suppose that I wish to return the parents but keep their son or vice versa. The same is true in respect of brothers and those linked in a servile quasi-matrimonial relationship.
36 POMPONIUS, Sabinus, book 23: Where several slaves are sold at a single overall price and we resort to the aedilician action in respect of one of them, an estimate of his quality alone is to be made, if the price was fixed for them all as, so to speak, a "job lot." But if all were sold for so much on the basis of a definite price per slave, so that the sum paid is the total of the individual prices, then we must claim the price of the individual slave, be it one of the higher or one of the lower prices.
37 ULPIAN, Curule Aediles' Edict, book 1: The aediles ordain that a slave of long standing is not to be sold as one newly enslaved. This edict counters the wiles of vendors; for the aediles ensure generally that purchasers shall not be circumvented by their vendors. Now many dealers are in the habit of selling as new slaves those who are not so in order to get a better price; for it is assumed that the more recently he has been enslaved, the slave will be more malleable, more trainable to his function, more responsive to direction, and more adaptable to any service; on the other hand, it is difficult to retrain an experienced slave or one of long standing and to mold his habits. And since slave dealers know that their customers will readily seek to purchase new slaves, they interpose those of long standing and sell them as new. In this edict, the aediles lay down that this is not to happen: Accordingly, if such a sale be made to an unsuspecting purchaser, the slave will be returned.
38 ULPIAN, Curule Aediles' Edict, book 2: The aediles say: "Those who sell beasts of burden must declare with all due publicity any disease or defect which the beasts have and must deliver them to purchasers in the best trappings in which they were displayed for sale. Should this not be complied with, we will grant an action for the trappings or the return of the animals because of the trappings within sixty days; but if the sale is to be rescinded because of a defect in or disease of the beast, the action will lie for six months, or if a diminution of the price be sought, for a year. Should beasts be sold together as a pair and there be a ground for rescission in respect of one of them, we will grant an action for rescission in respect of both." 1. The aediles here speak of rescission of the sale of beasts. 2. The reason for this edict is the same as that for the return of slaves. 3. And in effect, the same applies as in respect of defects in or diseases of slaves, so that what we have said of them should be transferred to the present context. And should a beast be dead, rescission is possible in the same way as in respect of a slave. 4. Does the designation "beasts of burden" cover cattle of every kind? This can scarcely be the case; for "beast of burden" means one thing, "cattle" another. 5. Hence, there is appended to this edict a clause which runs as follows: "What we have proclaimed in respect of the soundness of beasts of burden vendors must observe in respect of all other cattle." 6. All doubt consequently is at an end over whether oxen come within the edict; they may certainly not come under the head of "beasts of burden," but they are undoubtedly cattle. 7. There are, however, factors which constitute a disease in the case of human beings which do not do so where animals are involved; suppose, for example, that a mule be castrated; this cannot be regarded as either a disease or a defect because neither his stamina nor his usability is adversely affected by the fact that he can never be capable of procreation. We have also Caelius writing that it is not all animals which, being castrated, thereby become defective, unless the very fact of their castration diminishes their powers; the mule is, therefore, not defective. He says that Ofilius took the view that a gelding is sound as is also a castrated slave; but if the buyer knew nothing of this but the vendor did, the action on purchase will lie: Ofilius speaks the truth. 8. It has been asked whether a mule, which is such that it cannot be yoked with another, be sound; Pomponius says that it is, since it is often the case that beasts to be linked in joint harness cannot be so linked with one another. 9. He says also that if by temperament or physically the mule be from birth such that it will not bear a common yoke, it is not sound. 10. It is not only on the ground of disease or defect in the beast that return of it may be made; but also if it should not match up with what was declared or promised concerning it, return will be possible as in the case of slaves. 11. Caelius says that a beast is not to be regarded as dressed out for the purpose of sale, if such embellishment occur before the time of sale, say, two days before, but only when it be at the actual time of sale or when it be presented, so bedecked, for inspection as something up for sale. And generally, when the issue is one of the beast's trappings, both the action and the edict postulate "that the animal is led in, so bedecked, for the purpose of sale"; the animal could be so caparisoned for the journey to the place of sale and then to be sold without its trappings. 12. If several beasts be sold, they do not all have to be returned because of the trappings of one of them; so also if one beast, subject to the yoke, prove defective, it does not follow that all the others must be returned. 13. Should there be a yoke of mules, one of which is defective, a diminution of price is to be quantified not merely out of the price of the defective one but out of that of both; for when two are sold for a single price, that price is not to be apportioned, and the issue is how much less the pair was worth at the time of sale and not simply the lower value of the defective one. 14. Now when matched beasts are sold, the edict states that if one be such as to be returnable, both are to be returned; this protects the interests of both purchaser and vendor and the animals are not separated; in like manner, a three- or fourhorse team would have to be returned as a whole. But if two pairs of matched mules be sold, of which one mule or pair is defective, one pair only will be returned, the other not. And if they have not yet been matched up but simply four mules are sold at a single price, there will be a return of one mule only, not of the lot. Again, if a stable of horses be sold, the individual horse which is defective is to be returned, not all of them. We say the same of a batch of slaves sold at a single price, unless they cannot be split up, for example, serious or mimic actors.
39 PAUL, Curule Aediles' Edict, book 1: or brothers.
40 ULPIAN, Curule Aediles' Edict, book 2: For these are not to be separated. The aediles then say: "No one is to have a dog, any wild boar, wolf, bear, panther, lion.
41 PAUL, Curule Aediles' Edict, book 2: "and generally any dangerous animal, whether at large or so bound or chained that it shall not inflict harm.
42 ULPIAN, Curule Aediles' Edict, book 2: "where there is frequent traffic and it might injure someone or cause damage. The penalty for any contravention of this provision is, if a freeman's death result from it, two hundred solidi; if a freeman be said to have been injured, what a judge regards as right and proper; in all other cases, double the value of the damage done."
43 PAUL, Curule Aediles' Edict, book 1: Many take the view that a goring ox is defective as also unwilling mules; again beasts which take fright at nothing and bolt are held defective. 1. A slave who takes himself off to a friend of his master to seek his intercession is not a fugitive; indeed, even if his thinking be that in the event of his not receiving assistance, he will not return home, he is not yet a fugitive, for fight requires not only the intention but also the act of flight. 2. A slave who leaves his master on the instigation of another is a fugitive, even though he would not have gone, had it not been for the incitement. 3. Suppose that my slave who is serving you in good faith runs away; whether he knows or does not know that he belongs to me, he is a fugitive, unless his intention is to return to me. 4. A slave acts to commit suicide when he seeks death out of wickedness or evil ways or because of some crime that he has committed, but not when he is able no longer to bear his bodily pain. 5. If someone buy a slave and obtain a fourfold penalty by the action for property taken by force, when the slave is seized, and subsequently return the slave, he will have to make over what he received; but if he took proceedings in respect of an insult that he received through the slave, he will not have to give the vendor the award made to him, though the answer would be different if his ground of action was that the slave had been whipped or put to the question. 6. Sometimes it may happen that a slave is to be returned, even though we proceed by the action for assessment, that is, for a diminution; for if the slave should be so worthless that it is not in the purchaser's interests to keep him, for instance, he is mad or has periods of unreason, then, although the action for diminution of the price be brought, it is in the power of the judge to direct return of the slave and recovery of the price. 7. If someone planning to defraud his creditors return a slave whom he would not have returned but for the fraud, the vendor will be accountable to the creditors for the slave. 8. A pledge will remain valid despite the return of the slave in the same way that if the purchaser has alienated him or created a usufruct in him, he will not be properly returnable unless such transactions be redeemed; accordingly, the pledge must be redeemed before the slave is returned. 9. When a slave is bought under a condition, the action for rescission will be brought in vain before the condition has been realized because a purchase which is not yet complete cannot be undone by a judge's decision. Hence, whether it be the action on sale, on purchase, or that for rescission which is brought before that event, proceedings can be brought again after the condition is realized. 10. It can happen that even a straight purchase is in suspense by reason of a condition in law, as when a slave who belongs to one person but is in usufruct to another buys something; for, so long as it is not known with whose money he pays the price, it remains open for whom the acquisition is made; and in consequence, neither master can bring the action for rescission.
44 PAUL, Curule Aediles' Edict, book 2: The aediles most properly ruled that a slave should not be treated as an accretion to something of lesser value, so that there might be no fraud on the edict or on the civil law; Pedius explains it on the ground of the dignity of man. The aediles' reasoning applies also to other things; for it would be absurd that an estate should be accessory to a tunic. It is, though, perfectly permissible to make any accretion one wish to a slave who is sold. For it may often be that his peculium is worth more than the slave himself and sometimes the vicarius, who goes with him, is worth more than the slave actually being sold. 1. This edict proposes an action against the one who has the greatest part in the sale; for slave dealers generally so enter into partnership that whatever they do, they are deemed to do jointly. It seemed right to the aediles that the aedilician actions should lie against any of them who had a major or, anyhow, an equal share in the partnership so that the purchaser would not be obliged to litigate with a number of people, even though the action on purchase lies against each partner to the extent of his share in the partnership; for this class of person is more concerned with making profit or with underhand dealing. 2. Where the action for rescission or diminution of price is brought, a doubt may exist whether the vendor is also liable for eviction, disease, or flight by the slave, supposing him to have sold someone else's slave; for it could be said that it is no concern of the purchaser that the slave, successfully claimed from him by another, should be sound and not a fugitive. But the purchaser did have an interest in his being sound because of the services he was to perform, and the obligation in respect thereof is not diminished ex post facto. Once the slave has been delivered, the stipulation for the purchaser's interest in him becomes operative.
45 GAIUS, Curule Aediles' Edict, book 1: The action for rescission may result in one of two condemnations; for the vendor may be obliged to pay now the simple loss incurred, now twofold that sum. For if he does not pay up the price received and any accretions thereto or fails to release anyone under obligation in respect thereof, he will be directed to be condemned for double the price and accessories; but if he should make the relevant restoration or release the guarantor, he will have to pay only the simple loss.
46 POMPONIUS, Sabinus, book 18: When you return a slave to me, you do not have to undertake that he is free of theftuous or noxal liability, except in respect of what he may have done at your direction or that of the person to whom you may have alienated him.
47 PAUL, Sabinus, book 11: Labeo says that if you should manumit the slave whom you purchased, you will be refused the action for rescission or reduction in his price; as the action on a stipulation for double the price will disappear, so also will redress in respect of anything stated or promised concerning him. 1. But the aedilician actions survive the death of a
