Digest (21)

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 slave,

48 POMPONIUS, Sabinus, book 23: assuming that his death be not attributable to the plaintiff, his household, or his procurator. 1. A hearing is to be granted to one who, while complaining of a defect or disease in the slave, yet wishes to keep him. 2. It will be no detriment to the purchaser that the six months for rescission have elapsed if he bring, within the year, the action for diminution of price. 3. It is right that the aediles' edict should not affect a vendor who sells a fettered slave; this course is infinitely preferable to requiring him to proclaim that the slave has been in chains. 4. It is equally just that a defense should be possible in the aedilician actions that the purchaser was aware of the slave's flight or of his fetters and so forth, and that the vendor should be absolved. 5. The actions of the aediles lie both to and against heirs, with, however, the proviso that acts of the heirs after the death of the principal in respect of which proceedings could lie, may be the subject of complaint. 6. These actions lie not only over slaves but over all animals so that even if I purchase only a usufruct in the slave and so forth, I have the action. 7. When rescission is sought on the ground of soundness, it is legitimate to specify one fault and to give notice that should another become apparent, further proceedings will be brought. 8. It is not our practice to allow rescission in the case of sales where undertakings have been specifically excluded.

49 ULPIAN, Disputations, book 8: There is, in no way, any doubt that when land is sold, it may be the object of rescission; suppose that the land be noxious, rescission will be possible. And the benevolent view is that liability for land tax for the period after the land has been returned, will no longer fall upon the purchaser.

50 JULIAN, From Minicius, book 4: A slave with varicose veins is not sound.

51 AFRICANUS, Questions, book 8: When a slave himself buys another slave who is defective or diseased and his master brings the action for rescission or that on purchase, it is, says [Julian], in every way the state of knowledge of the slave, not of the master to which we look, so that it does not matter whether the slave makes the purchase with his peculium or in the name of his master or whether it be certain or not that he buys on his master's instructions; for in such a case, it will accord with good faith that the slave engaged in the purchase was not deceived and, looking at it from the other point of view, his wrong in knowingly making such a purchase should redound to his master's disadvantage. Again, if a slave buy at his master's behest a slave whom the master knows to be defective, the vendor will incur no liability. 1. Where a procurator makes the purchase and knows that the slave is defective or diseased, there can be no doubt that although he is liable to his principal in the action on mandate or for unsolicited administration, proceedings cannot be taken on the purchase; but if, at the principal's behest, the procurator unwittingly buys a slave whom the principal knows to be defective and then brings the action for rescission, a valid defense against his suit cannot, according to [Julian], be raised on the ground of the principal's knowledge.

52 MARCIAN, Rules, book 4: Suppose a slave to have stolen from his master; the master does not have to state this in selling him and it will be no ground for rescission; but if he says that the slave is not a thief, he will be liable on the basis of his statement or promise.

53 JAVOLENUS, From, the Posthumous Works of Labeo, book 1: Those suffering from a tertian or quartan fever, gout, or epilepsy cannot correctly be said to be sound, even on those days when they are not affected.

54 PAPINIAN, Replies, book 4: It is no ground for the action for rescission that a slave, purchased on good terms, runs away, if he had not previously taken flight.

55 PAPINIAN, Replies, book 12: Once the six months of business days allowed for the action for rescission are up, a person who was unaware of the latent defect of a fugitive can no longer take proceedings; no concession is to be made on that account to the purchaser whose eyes are now opened.

56 PAUL, Questions, book 1: Latinus Largus: I ask whether rescission proceedings are open to a surety of the purchase. My reply is that if the verbal guarantor were accepted in respect of all aspects of the transaction, Marcellus thinks that they are.

57 PAUL, Questions, book 5: If a slave buys another slave and his master brings the action for rescission, the vendor will not be condemned to him unless the master makes good all that should be made good in such proceedings; and that in full, not merely to the extent of the slave's peculium. Even if the master proceed by the action on purchase, he will recover nothing unless the price has been paid in full. 1. But if a slave or son-in-power makes a sale, rescission proceedings are limited to the peculium. The cause of rescission is taken into account in the peculium, and it is no occasion for concern that before his return, the slave is not part of the peculium (for a slave cannot be part of the peculium who still belongs to the purchaser); the actual issue of the rescission, however, will be computed in assessing the peculium. Hence, if the slave be bought for ten thousand and is worth five thousand, we say that this too is part of the peculium, assuming that the purchasing slave owes his master nothing and that his peculium has not been withdrawn. But if the slave's debt to his master be greater than that sum, the result will be that he gives up the slave and obtains nothing.

58 PAUL, Replies, book 5: My question is: If a slave runs away from his purchaser and is declared the object of the rescission process, does he have to be returned to the vendor before the latter makes good the value of articles which the slave took with him or not? Paul replied that the vendor will be required not only to repay the price but also to give the value of the goods taken, unless he be prepared to leave the slave in noxal surrender in respect of them. 1. I ask further: If the vendor be unwilling to pay for the goods and return the price, can the slave be returned and an action issue on the stipulation for twofold in respect of the peculium or the price of the slave returned? Paul answered that an action on the stipulation will lie in relation to recovery of the price of the slave; the question of the stolen goods has already been dealt with. 2. I bought for double his value a slave who stole from me and ran away; he was soon traced and asked in the presence of upstanding witnesses whether he fled to his vendor; he replied that he had. My question is: Should his answer be given credence? Paul's answer was that if there was no lack of evidence of earlier running away, the slave should be believed.

59 ULPIAN, Edict, book 74: When a slave is sold who is such as to be appropriate for return, it is not right that the vendor should claim the price of a returnable thing. 1. If someone buy two slaves for a single price and one be returnable, a defense can be set up by the vendor in the event of his claiming return of the whole price. But if he claim only part of the price, no defense will foil him, unless the case be one of those where a defect in the one slave requires the return of both.

60 PAUL, Edict, book 69: When rescission takes place, everything is restored to its original position so that it is as if the sale never took place.

61 ULPIAN, Edict, book 80: When action is brought concerning a servitude, the losing vendor will be liable for the amount by which the purchaser would have bought more cheaply, had he been aware of the existence of the servitude.

62 MODESTINUS, Distinctions, book 8: It must be said that the edict of the curule aediles does not apply to gifts; for what would the donor promise to return when no price has been asked for? But if the thing, the object of the gift, has been improved, should not the donor be liable for the interest of the improver? Certainly not; the donor should not be punished for his liberality. Hence, in the case of gifts, there is no place for the undertakings which the aediles require in respect of things for sale. Of course, the donor should and does undertake not to be fraudulent, willfully reclaiming what he voluntarily conferred.

63 ULPIAN, Curule Aediles' Edict, book I: It must be realized that this edict applies to all sales, not only those of slaves but also those of anything else. There used to be surprise that no edict was propounded in respect of hire; the explanation is either that the aediles never had jurisdiction over this contract or that circumstances are different in hirings from those in sales.

64 POMPONIUS, Letters, book 17: Labeo writes that when you buy a number of slaves at an overall price and you wish to take action in respect of one of them, there will have to be an estimate made between the various slaves in the same way that the quality of the particular field is assessed when proceedings are taken in respect of eviction from part of the land purchased. 1. He says also that if you sell several slaves for a single price and you guarantee that they are sound and only some of them are unsound, an action can properly be brought for breach of statement or promise in respect of all. 2. In the same portion of his work, he says that a beast of burden may stray or run away but that no action can be brought on the ground that the animal strays or runs away.

65 VENULEIUS, Actions, book 5: There are defects which are mental rather than physical, as when the slave is addicted to watching the games or studying works of art or lying or has some similar defect. 1. Cassius sys that whenever a disease is declared serious, it is one which does damage; and that, in turn, means one leaving lasting effects, not one which disappears with the passage of time; moreover, a disease is serious which affects a slave after his birth, serious ones being those leaving lasting damage. 2. One can describe as a slave, both one experienced in servitude and one newly reduced to slavery. However, Caelius says that experience, in this context, is to be assessed not by the length of the servitude but by its nature and ground. For any new slave, bought from a dealer and appointed to some function, thereby joins the ranks of the experienced; new slavery is to be determined not by rawness of mind but by the fact of servitude. It matters not whether the slave understands Latin or not; he can be experienced by reason of being versed in liberal studies.

II

EVICTIONS AND THE STIPULATION FOR DOUBLE THE PRICE

1 ULPIAN, Sabinus, book 28: Whether he be evicted wholly or only partially from the thing, the purchaser has redress against his vendor. Now when the eviction is partial but the thing is undivided, his redress is proportional to that part; but if the eviction be from a specific piece of land, redress will be not in relation to a nonspecific portion of the whole estate but on an assessment of the quality of that particular piece. Suppose the eviction to be from the most valuable part of the land or from the least valuable, the quality of the land must be quantified and redress directed accordingly.

2 PAUL, Sabinus, book 5: If the vendor does not give the undertaking for double the price and issued on that ground, he must be condemned, as a defendant, for double the price.

3 PAUL, Sabinus, book 10: We know that when a slave is sold, his peculium is regularly not included in the sale; now suppose that, in fact, a slave should take with him something from the peculium. If the purchaser be sued for theft on that account, he will not have redress against the vendor on the stipulation for double the price on that ground, because the requirement is that the slave be guaranteed nontheftuous and under no noxal liability at the time of sale; and this action arises subsequently to the sale.

4 ULPIAN, Edict, book 32: It has been asked whether one selling a slave ought to give a verbal guarantor against eviction, what might commonly be called a second guarantor of the purchaser. The tradition is that this it not essential, unless the parties have specifically provided otherwise. 1. If a tutor should sell on behalf of his impubes and eviction follow, Papinian, in the third book of his Replies, says that an actio utilis lies against the ward whose affairs are administered, adding, however, that this holds good only insofar as the tutor has received clearance on his accounts. Now let us consider the case that the tutor be insolvent: Should condemnation of the ex-ward be for the full amount? I think so for no one does wrong by entering into a contract with a tutor.

5 PAUL, Edict, book 33: The vendor of a slave said that his peculium would go with him, and then there followed eviction in respect of a vicarius of his. Labeo says that the vendor has to restore nothing on that account; either that slave was not part of the principal slave's peculium and so was not necessary thereto, or he was, and the purchaser has suffered a wrong at the hands of the judge. It would be different if the vendor said that the vicarius went with the slave; for then he would be liable for him as part of the peculium.

6 GAIUS, Provincial Edict, book 10: When land is sold, the transaction should be in accordance with the custom of the region, and the undertaking in respect of eviction should be adapted accordingly.

7 JULIAN, Digest, book 13: One who buys from a pupillus a slave, who is his [the ward's] substitute heir, can proceed against the substitute in the action on purchase as also on that arising from the undertaking against eviction, although he could have neither of these actions against the pupillus himself.

8 JULIAN, Digest, book 15: One selling a slave will have to make good to the purchaser what it is worth to him that the slave belong to the vendor. Accordingly, if he be evicted in respect of the issue of a slave-woman or an inheritance that the slave accepted at his command, he can bring the action on purchase; and just as the vendor is bound to give free and uninterruptible possession of the slave whom he sells, so, equally, he is liable to the purchaser for what the latter could acquire through the slave.

9 PAUL, Edict, book 76: Suppose that you sell me a slave belonging to Titius and then Titius dies, leaving me as his heir; Sabinus says that the action for eviction no longer lies because eviction in respect of the slave is no longer possible; but the action on purchase will still be available.

10 CELSUS, Digest, book 27: Suppose that someone sell me a right of way, as if he were sole owner, over land which he owns in common and formally create the right; he will be liable to me for eviction, if his co-owner does not join in the grant.

11 PAUL, Replies, book 6: Lucius Titius bought lands in Germany beyond the Rhine and paid part of the price. His heir, when sued for the balance, put up the defense that by imperial command, part of the land involved had been sold and part assigned to veterans as their reward. I ask: Does this risk of eviction lie at the vendor's door? Paul replied that the vendor is not affected by evictions occurring subsequently to the sale and so, on the facts stated, the price of the land could be claimed. 1. When the stipulation for double the price or for an indemnity contains the words, "the slave in issue is free of noxal liability," the vendor cannot be sued in respect of wrongs which are the object of public prosecution.

12 SCAEVOLA, Replies, book 2: Someone instituted heir as to half sold land and all the heirs took the price; the question is: If there be eviction from that land, are the coheirs generally liable to the action on purchase? My reply is that if the co-heirs were present and did not dissent, each will be deemed to have sold his own share.

13 PAUL, Sabinus, book 5: When there is eviction from part, Proculus rightly held that its quality should be estimated as at the time of sale, not that of eviction;

14 ULPIAN, Edict, book 18: and not for half the price;

15 PAUL, Sabinus, book 5: but if there has been any accretion by alluvion, the time of such accretion is to be regarded. 1. When there is eviction from a usufruct, an assessment must be made in terms of the quality of the produce. But in the case of eviction from a servitude, the assessment is of the diminished value of the land.

16 POMPONIUS, Sabinus, book 9: When there is eviction from what is sold, the action on purchase will lie in respect of its accessories, just as, when there is eviction from things expressly accessory to a purchased estate, their single value must be made good. 1. The stipulation for double the price becomes enforceable when the thing is delivered to the claimant or the purchaser is cast in damages or the person in possession of the thing is absolved when sued by the purchaser. 2. Suppose that we are evicted in the case of a slave for whom we have stipulated double; the question arises whether we can nevertheless sue on the ground of his being a fugitive or unsound. Proculus says that it has also to be considered whether it is relevant that the eviction took place after he had been made over to me or when he had not been; for where he has so been made over, I have an immediate interest in his not being of inferior quality and the action that once accrues to me on the stipulation is not lost by eviction, death, manumission, or flight of the slave nor on any other similar ground; but if he has not yet been made over to me, I am not made the poorer by his being a fugitive, since he is not yet numbered among my assets. Should I stipulate that he be sound and not a wanderer, my interest is based on his present usability, obscure though that may be (for no one currently knows how long I will hold him or whether someone will evict me or the person to whom I may sell or promise him). In the result, the gist of Proculus's opinion is that I recover on the stipulation only my present interest or what would, after the stipulation, have been my interest in his not being a fugitive.

17 ULPIAN, Sabinus, book 29: No doubt exists that if a vendor claims ownership of a thing which he himself sold, he can be defeated with the defense of fraud, even though his assertion of ownership is under a different title; for it is scandalous of him to seek to evict his purchaser from what he himself sold. For his part, however, the purchaser has the option of invoking the defense, thus countering the claim and so keeping the thing or of allowing the thing to be taken from him and recovering double the price on the stipulation.

18 PAUL, Sabinus, book 5: Even if the defense be not raised or, despite its use, the purchaser be evicted, the vendor can be sued on the stipulation for twofold or in the action on purchase.

19 ULPIAN, Sabinus, book 29: Although no stipulation may have been taken, we say the same about the action on purchase. 1. If a freeman serving in good faith should be sold to me by Titius and Titius appoints him heir as being a freeman, whereupon he raises an action against me on the issue of his liberty, he will be personally liable to me on the purchase.

20 POMPONIUS, Sabinus, book 10: I pledged my land and later alienated it to you; an undertaking would have to be given that you will not be liable on the pledge, if I later buy the land from you and you give me a cautio against eviction, though, even without such undertaking, I could be defeated by the defense of fraud if I were to sue over the existence of the pledge.

21 ULPIAN, Sabinus, book 29: If a slave who has been sold should die before eviction occurs, the stipulation is not enforceable, because the eviction is not effected by someone; it is an incident of man's fate; but an action for fraud will lie, if there has been any fraud in the matter. 1. Thus, as Julian elegantly puts it in his forty-third book, the double stipulation is only enforceable if and when the thing is lost in such circumstances that the purchaser's loss is due to the eviction. 2. In consequence, he says that if the purchaser of a slave appoints the vendor as his procurator when a dispute arises over the slave and the vendor, being defeated in the action, is cast in damages, the stipulation for double does not become enforceable because the procurator, being the vendor, will not have the action on mandate to recover the amount of the damages from the purchaser; when the purchaser lacks neither the thing nor his money, the stipulation will not be operative; but if it were the purchaser himself who was unsuccessful and had to pay damages, the stipulation would be enforceable, as Julian himself writes in the same book. It would not be right that the slave who has not been paid for should be taken from one's opponent; the buyer would be entitled to have the slave by virtue of the second purchase, that is, the award of damages, not the first. 3. Still in the same book, Julian writes that if a slave runs away after joinder of issue through the possessor's fault, the possessor will be condemned, but he cannot immediately have
recourse against the vendor on the stipulation for double because his not having the slave is due to the latter's running away and not to eviction; of course, he says, when he regains possession of the fugitive, then the stipulation will be enforceable. If the slave ran away, without fault on the possessor's part and then, undertakings being interposed, judgment goes in the possessor's favor, the stipulation will be enforceable only if he returns the apprehended fugitive. Where he elects to pay damages, therefore, apprehension is enough; where an undertaking is given, the stipulation becomes enforceable only when the slave is returned.

22 POMPONIUS, From Plautius, book 1: If a tutor pays damages in respect of a thing of his pupillus which he buys, not with the money of his pupillus but with his own, the stipulation concerning eviction will be enforceable by the pupillus against the vendor. 1. A woman buys land and takes sureties against eviction from it and gives it to her husband as dowry; then someone recovers it from her husband by action; the woman can at once proceed against the verbal guarantors of the sale on the ground that her dowry is diminished or nonexistent, if the husband had only the value of the land as dowry.

23 ULPIAN, Sabinus, book 29: Even if eviction occurs after the wife's death, recourse can be had to the stipulation for double because the husband can sue her heirs on the dowry and they can sue on the stipulation.

24 AFRICANUS, Questions, book 6: We do not, however, say that it follows that if a prospective bride gives a slave as dowry to his real owner, the stipulation becomes enforceable, even though the woman will equally be without a dowry, because, even though she has no right to have the slave, the truth is that her eviction is not through legal proceedings. But she will have an action on purchase against the vendor.

25 ULPIAN, Sabinus, book 29: Should you manumit a slave in respect of whom you have received a stipulation for double the price, you can recover nothing on the stipulation, because there is no eviction preventing your holding a slave whom you have already given up by your own will.

26 PAUL, Sabinus, book 5: But the purchaser can sue on the sale on the ground that he does not have a freedman, if the vendor knew that he sold someone else's property. Again, if the purchaser was obliged to manumit him under fideicommissum, he can proceed by the action on purchase.

27 POMPONIUS, Sabinus, book 11: The law which we observe is that the vendor is not liable if the purchaser, suing a third party, is defeated by defenses particular to the purchaser himself; but if the defenses are peculiar to the vendor himself, then he is liable. Of course, the purchaser will have neither the action on purchase nor that on a stipulation for double the price or for an indemnity, if the reason for his defeat be a defense grounded in his own conduct.

28 ULPIAN, Edict, book 80: But if there be defenses stemming from both of them, vendor and purchaser, the issue will be on which ground the judge decided against the purchaser; and the stipulation will or will not be enforceable accordingly.

29 POMPONIUS, Sabinus, book 11: Suppose that I repurchase from the owner a thing which you sold me which belonged to another; the younger Celsus says that Nerva was wrong to say that you can recover the price from me by the action on sale on the ground that I am entitled to hold the thing, because that would not be compatible with good faith and I keep the thing on a ground different from your sale to me. 1. If the party taking a stipulation for double the price be defeated in an action which he brings, having lost possession of the thing, the circumstances being such that, but for losing possession, he could have kept it but, as plaintiff, he must fail, the promisor in the stipulation will either be free of liability by operation of law or be able to invoke the defense of fraud, if the promisee lost possession through his own fault or by his own will. 2. The vendor can be given notice at any time that he should be available for this matter; for there is no time limit set in the stipulation, save that it should not be given at the time of the actual adverse judgment.

30 POMPONIUS, Sabinus, book 19: If the victim of a theft by the slave be the heir of the purchaser who obtained a guarantee that the slave was free of theft and noxal liability, he will have the action on the stipulation, as though he had himself been the promisee.

31 ULPIAN, Sabinus, book 42: If, when the question is put, someone promise that "the slave is sound and is not a thief or corpse robber" and the like, there are some who think that such stipulation is useless, because either the slave is otherwise in which case the promise is impossible or he is not and then it has no point. However, my view is that a promise that "the slave is sound and is not a thief or corpse robber" has substance; for its essence is the buyer's interest in his being or not being so. Were it added, "reparation will be made if," the stipulation would be the more valid. On any other view, the stipulation required by the aediles would be useless, and no rational person would accept that.

32 ULPIAN, Sabinus, book 46: Since it is said that whenever several items are included in a stipulation, there are really several stipulations, we have to consider whether the same applies to the stipulation for double the price, when the purchaser stipulates that the slave "is not a fugitive or a wanderer" and the other things promised under the edict of the curule aediles: Do we have one stipulation or several? Reason indicates that they are several. 1. There, therefore, applies what Julian writes in the fifteenth book of his Digest. He says that one who has brought the action for diminution of price because of the slave's running away, then sues because he is diseased; it must be ensured, he says, that the purchaser does not make a profit and recover twice for the same defect. Let us suppose the slave bought for ten when he could have been bought for two less, if the purchaser had only known him to be a fugitive; the purchaser recovers that on the ground of his flight; soon after, he discovers that the slave is diseased and, had he known of this fact, again he could have bought for two less. Had he sued on both grounds at once, he would have recovered four because he would have paid no more than six for one who is a fugitive and unsound. Along these lines, it is possible to bring action on the stipulation more than once; for action is not on one stipulation only but on several.

33 ULPIAN, Sabinus, book 51: If I buy a slave and then sell him and am condemned to my purchaser because I had no title to transfer the slave from whom he has now been evicted, my own stipulation for double becomes enforceable.

34 POMPONIUS, Sabinus, book 27: If you buy a slave with a provision against prostitution and that if the slave be prostituted, he or she will be free, then, should he or she have obtained his or her liberty through your contravention of the term of the contract, you will be regarded as rather manumitting him or her, and so you will have no recourse against the vendor. 1. If I be sued in the action to divide common property and the slave be awarded to my opponent as being shown to be common property, I will have an action on the stipulation for double the price, because it does not matter what is the nature of the action in consequence of which I am not entitled to hold him. 2. The stipulation for double the price is operative not only where someone sues that purchaser for ownership and so recovers from him but also if he proceeds by the action Serviana.

35 PAUL, Curule Aediles' Edict, book 2: A purchaser is regarded as evicted by a creditor, when his title to hold the thing is to all intents at an end. Hence, if he be evicted by the actio Serviana, the stipulation is enforceable; but since he can keep the slave, if his vendor, the debtor, pays what he owes, the vendor, if sued after he has discharged his debt, can invoke the defense of fraud.

36 PAUL, Edict, book 29: When a ship or a house is sold, the individual planks or bricks are not regarded as objects of the purchase, and so the vendor will not be liable for eviction as though there has been eviction from part.

37 ULPIAN, Edict, book 32: The purchaser should receive the stipulation for double the price from the vendor, subject to contrary agreement; but he is not entitled to security, unless that be specifically contracted for; he is entitled only to the promise. 1. Now when we say that twofold should be promised, this does not mean that it applies generally but only to things of value, a pearl, for instance, valuable ornaments, a silk garment, or anything else of no small worth. The vendor of a slave is also required to give the undertaking in respect of a slave under the edict of the curule aediles. 2. Should the purchaser in error take a stipulation for indemnity instead of for double the price, Neratius says that in the event of eviction, he can recover by the action on purchase the amount by which he understipulated, provided that the purchaser does everything which comes within the stipulation; if that be not the case, he will recover in the action on purchase only the vendor's undertaking for the amount not brought into the original stipulation.

38 ULPIAN, Disputations, book 2: Where a creditor sells a pledge, it may be considered whether he is liable on the purchase, if there be eviction from the thing, to make over to him the action which he has against the debtor; for he has the counteraction on the pledge. The better view is that he must make it available. Who would not regard it as proper that the purchaser should at least recover what will not be at the expense of the creditor?

39 JULIAN, Digest, book 57: One below the age of twenty-five sold land to Titius, and Titius sold it to Seius; the minor now claims that he was circumvented in the sale and asks proceedings not only against Titius but also against Seius. Seius asks before the praetor that he be granted a valid stipulation against Titius; I think that it should be allowed. My answer was that Seius's claim has merit; for if he should lose the land through the praetor's investigation, it is right that he should be recompensed for the eviction by the same praetor. 1. Suppose that your slave should buy a slave whom he sells to Titius, promising double the price in the event of eviction, while you have stipulated similarly from the vendor of the slave. If Titius were to claim the slave and be unsuccessful because your slave could not give title to the slave if he transferred him without your consent, the actio Publiciana remains, and so the stipulation for double will not become enforceable; hence also, your own vendor can defeat you with the defense of fraud if you sue him on his undertaking. But it is different if a slave should buy a slave and take a stipulation for double and later sell him and the purchaser were evicted from him; his owner will have action in full against the seller, but the purchaser will have action against the owner only to the extent of his peculium. The purchaser must, however, give notice of the eviction to the slave, not to his master; for then, the eviction taking place, he can effectively sue to the extent of the peculium; should the slave now be dead, however, he can give notice to the master. 2. You buy land, as to two thirds from me and, as to the remaining third, from Titius and then someone claims half the estate from you; if that half is wholly from the two thirds you had from me, Titius will incur no liability; but if the claim be for the third received from Titius and a sixth of what you had from me, Titius will be liable to you for a third and I for a sixth in respect of the eviction. 3. A head of household knowingly sold his son-in-power to an unsuspecting purchaser; the question arose: Was he liable for eviction? My answer was that one who sells a freeman as a slave, whatever the state of his knowledge, is liable for eviction; hence, a head of household who sells his son as if he were a slave is so liable. 4. Someone who delivers a statuliber is liable without limit of time in respect of evictions unless he disclosed that he was a statuliber. 5. Someone sells and makes over a slave, stating that Seius has a usufruct in him, when in fact Sempronius is the beneficiary; when Sempronius claims his usufruct, the vendor will be as liable as if he had said at the time of sale that he was not liable to Seius for any usufruct. But if Seius really had a usufruct so left to him, however, that when it ceased to benefit Seius, it would pass to Sempronius, the vendor will be liable when Sempronius claims his usufruct, but if Seius should sue, he would properly be absolved.

40 JULIAN, Digest, book 58: Should the purchaser, who took sureties from me in respect of eviction, bequeath the land away from me who am now his heir, the verbal guarantors are released forthwith, and even if the legatee be evicted, no action lies against the guarantors.

41 PAUL, Curule Aediles' Edict, book 2: If I become the heir of the person to whom I sold a slave in respect of whom, when the purchaser put the question to me, I promised double the price, the stipulation will in no way become enforceable if the slave be evicted; for I was not evicted when I sold him; nor was the person to whom I made the promise; because I can hardly be said to be obliged to pay myself double. 1. Again, if the purchaser become heir of the slave's owner, the stipulation for double the price will not be enforceable, because he cannot be evicted and cannot be deemed to evict himself. In cases like that, therefore, the action on purchase must be brought. 2. Suppose that someone buys land and takes sureties against eviction; he sells the land and then becomes heir to his purchaser or the purchaser becomes his heir; the question is: Can proceedings be brought against the verbal guarantors if the land be evicted? I think that in either case, the guarantors are liable. Even when a debtor becomes heir to his creditor, a kind of accounting occurs between the heir and the inheritance, and the debtor is regarded as getting a larger inheritance, as though he has paid off thereto the money he owed and thereby his own assets are reduced. Conversely, when a creditor becomes heir to his debtor, he is deemed to be heir to a smaller inheritance, as though the estate itself pays him off. Accordingly, if the person giving sureties against eviction becomes his purchaser's heir or the purchaser heir of the vendor, the verbal guarantors will still be liable. And if the inheritance of both vendor and purchaser should fall to the same person, he too can sue the guarantors.

42 PAUL, Edict, book 53: If a pregnant slave-woman be sold and delivered, the vendor cannot be sued on the ground of eviction if her eventual child be evicted, because the child was not an object of the sale.

43 JULIAN, Digest, book 58: If a purchaser buys a cow and her calf, born after the purchase, is evicted, he cannot sue on the stipulation for double the price; for neither the cow nor her use and her produce is evicted. When we describe the calf as the fruit or produce of the cow, we are talking in factual terms, not of a legal right; in like manner, we correctly call wine-making grapes and crops the fruits of land; but there is no question of their properly being designated a usufruct.

44 ALFENUS, Digest, Epitomized by Paul, book 2: He replied that a little boat is not part of the ship and is not adjoined to it for it is itself a sort of small ship; but all the fittings of the ship (for example, rudders, the mast, yards, and sails) are like limbs of the vessel.

45 ALFENUS, Digest, Epitomized by Paul, book 4: One who transferred an estate of a hundred acres indicated to the purchaser boundaries far exceeding that extent. If there be eviction from any part of those confines, he says, the vendor will be liable to the purchaser according to the quality of the land evicted, even though what remains does comprise a hundred acres.

46 AFRICANUS, Questions, book 6: You sold me a property in which Attius had a usufruct, and you did not mention Attius's usufruct; I then transferred the land to Maevius, reserving myself a usufruct. Julian said that if Attius should undergo a change of his civil status, the usufruct would revert, not to me, but to the owner of the land; for a usufruct could not be validly created at a time when it had already been conveyed elsewhere, but that I would be able to sue the vendor in respect of eviction, because it is only right that my position should be as it would have been if another had not had a usufruct at the relevant time. 1. If you grant me a right of way over someone else's land, [Julian] says that you will be liable for eviction; for wherever the grant would have been valid if the land had belonged to the grantor, then liability for eviction follows, if the land, in fact, belongs to a third party. 2. When I sold you Stichus, I said that he was a stutuliber, having been manumitted under the condition, "if the ship arrives from Asia," when the true condition was, "if Titius becomes consul." The question is this: If the ship first arrives from Asia and, subsequently, Titius becomes consul, so that Stichus attains his freedom, am I liable on the ground of eviction? [Julian's] answer was: "No." For the purchaser acts fraudulently in that the condition which he discharged on the ground of eviction was realized first. 3. Again, if I said that a slave was to be free after two years, when the true period was one year, and he became free after two years or I said that he was to become free on paying fifteen, when the sum was really ten, the better view is that in these cases, too, there would be no eviction liability.

47 AFRICANUS, Questions, book 8: If I buy two slaves from you at five apiece and one of them be evicted, there can be no doubt that I can properly bring the action on purchase on that account, even though the other be worth ten; and it is irrelevant whether I bought them separately or together.

48 NERATIUS, Parchments, book 6: When land has been purchased as wholly free from encumbrances and the purchaser has recovered something from the vendor by reason of eviction in respect of some servitude and then there is eviction from the whole estate, liability, this time, will be for the balance of double the price. To adopt any other principle would mean that if eviction took place in respect of first some servitudes and then of ownership, the purchaser would recover more than double what he paid.

49 GAIUS, Provincial Edict, book 7: If a usufruct be claimed from the purchaser, he is to give notice to the vendor as though he were one from whom part of the property is claimed.

50 ULPIAN, Edict, book 25: No one has ever suggested that when, executing a decision, the praetor's minions sell pledges by extraordinary process, an action will lie against them, if the thing be evicted; but if they deliberately dispose of the thing for a price less than its worth, the owner of the thing will have the action for fraud against them.

51 ULPIAN, Edict, book 80: If judgment should go against the purchaser because of the judge's ignorance or error, we do not accept that his vendor-guarantor is to bear the loss on that account; how can it matter that the thing is lost through the judge's venality or his stupidity? The wrong done to the purchaser is not to be visited upon the vendor-guarantor. 1. Suppose Titius to sell Stichus who is directed to become free on the death of Titius; Titius dies and the slave duly attains his freedom; is any stipulation concerning the eviction of Stichus, which may have been interposed, to become enforceable? Julian says that it is enforceable; for although Titius himself, in such circumstances, could not have been given notice of the eviction, his heir can. 2. If a man sell land and then be buried in it by his heir with the consent of the purchaser, the action for eviction has no place; for in such a case, the purchaser will lose his ownership. 3. It is, however, no occasion for surprise that when there be eviction from a slave, the heir is liable, although the deceased would not have been under a similar obligation; for there are other cases in which the obligation of or to the heir is greater than in the case of the deceased. Put the case that the slave become someone's heir after the death of his purchaser and that he be directed by the purchaser's heir to accept the inheritance; the value of the inheritance is due to the heir in the action on purchase, though the deceased purchaser could only have required that the slave be delivered to him. 4. If there be several who are fully liable to me in respect of eviction, Labeo says that a defense will defeat me if, having sued one in respect of eviction, I then take proceedings against the others.

52 ULPIAN, Edict, book 81: It should be known that for its enforceability, it does not matter whether the stipulation for double the price was invoked by reason of sale or on any other ground.

53 PAUL, Edict, book 77: When land has been transferred and part of it is evicted, assuming that it was sold at so much per acre, the vendor's liability is assessed, not according to the quality of the land but according to the individual prices of what is in the part evicted-and that, even though the more desirable extents be those evicted. 1. If a purchaser, when he could, did not give notice to his vendor-guarantor and in consequence was evicted, the very fact of his lack of awareness is attributed to his fault, and he, therefore, cannot sue on the stipulation.

54 GAIUS, Provincial Edict, book 28: One who sells someone else's thing ceases to be liable for eviction after the purchaser's acquisition of ownership by long-term prescription or by usucapion. 1. If an heir sell a statuliber, directed to be free on giving a certain amount of money, and declare the sum to be greater than it is, he will be liable to the action on purchase, if the condition be such that the slave would pass to the purchaser, that is, that the sum is to be paid to the heir; if the sum were to be paid to a third party, then, even though the correct amount was stated, the heir would be liable for eviction to the purchaser if he did not state that the sum was due to another.

55 ULPIAN, Curule Aediles' Edict, book 2: If judgment goes against a purchaser because he did not appear, the stipulation is not enforceable; for he is deemed to have lost because of his nonappearance rather than because he had a bad case. But what if, though the purchaser against whom judgment was given was not present, someone else was there and conducted the case? What do we say? It could be, for instance, that issue was joined with a pupillus with the auctoritas of his tutor and, the pupillus being absent, the tutor fought the case and judgment went against him; are we not to say that the stipulation is enforceable? After all, the case has been fought. It is enough that it was fought by one with a right to fight it. 1. Notice of a claim against him should be given by the purchaser to the vendor, if he be present; but if he be absent or, though present, prevent notice being given to him, the stipulation becomes enforceable.

56 PAUL, Curule Aediles' Edict, book 2: If it be stated at the time of sale that a stipulation for once, triple, or fourfold the price is to be entered into, an action on purchase will lie at any time. However, contrary to popular belief, one who promises double the price is not required also to give security; a simple promise suffices unless the parties agree otherwise. 1. If I agree to go to arbitration and the award is against me, no action for eviction will be granted me against the vendor; for I acted without any compulsion upon me. 2. In a stipulation for double the price on the sale of a slave, it is necessary to provide also against eviction from part of the slave, because eviction from part cannot be regarded as eviction from the whole slave. 3. If the purchaser is able to become owner by usucapion but does not, that is deemed due to his own fault; hence, the vendor will not be liable in the event of the slave's eviction. 4. If notice of an eviction claim be given to the procurator of the person who promised in respect of eviction, that person being present and aware of what is going on, the promisor himself is nonetheless liable. 5. So also is one who takes steps to prevent notice being given to himself. 6. Indeed, even if the vendor did nothing but the purchaser did not know his whereabouts, the stipulation is enforceable all the same. 7. Trebatius says that the lenient view has been accepted that if the tutor cannot be found, notice may be given to a pupillus even without his tutor's auctoritas.

57 GAIUS, Curule Aediles' Edict, book 2: The purchaser's possession continues even if the person successful against him in eviction proceedings should, before the thing is taken or led away, die without a successor, the circumstances being such that there is no occasion for his estate to go to the imperial treasury or to be sold by his creditors. In such a case, the purchaser will have no action on the stipulation, since his holding is undisturbed. 1. This being so, we must consider whether it must equally be held that no action will lie on the stipulation, if the successful claimant makes a gift or legacy of the thing to the purchaser, before taking or leading it away. For the rest, once liability on the stipulation is incurred, it cannot be released.

58 JAVOLENUS, From Plautius, book 1: An heir handed over a slave under a legacy which mentioned no specific slave and guaranteed against fraud; the slave was later evicted. The legatee can have an action on the will against the heir, although the latter was unaware that the slave did not belong to the testator.

59 POMPONIUS, From Plautius, book 2: If a thing that I bought from Titius be bequeathed by legacy charged on me, the legatee, when sued by the owner of the thing, cannot give notice to my vendor, unless there be ceding of action or he chance to have a hypothec.

60 JAVOLENUS, From Plautius, book 2: If it be not stated at the time of sale what liability the vendor is to incur in respect of eviction, he will be liable on eviction for no more than the price and, by virtue of the nature of the action on purchase, the purchaser's damages.

61 MARCELLUS, Digest, book 8: I t is agreed that if I buy something from you and sell it to Titius and ask you to deliver to Titius, you will be liable to me for eviction, just as if I had received the thing from you and delivered it myself.

62 CELSUS, Digest, book 27: If I sell you a thing already in your hands, it is established that I will be liable in the event of your eviction because it is regarded as having been delivered to you. 1. Should my vendor have several heirs, there is a single liability for eviction of which notice is to be given to all, all being liable to defend the proceedings; now if the rest should deliberately not appear but one of them defends the action, he will, by reason of the notice and their aforementioned absence, be successful or unsuccessful for all of them and I could validly, as purchaser, proceed against the others, because they have been defeated on the issue of eviction. 2. If you sell me, who do not know the position, land in which Titius has a usufruct for life, reserving the usufruct to yourself, and Titius, having experienced a change of status, bring an action for his right to use and enjoy the land, I will have an action against you on the stipulation in respect of eviction, because, if what you told me at the sale had been true, I would properly have denied that Titius had a usufruct.

63 MODESTINUS, Replies, book 5: Herennius Modestinus made answer that it is no objection to one bringing the action on purchase that no notice concerning eviction was given, if the requirement of notice had been waived by agreement. 1. Geia bought the land of Seius from Lucius Titius, and when an issue was raised in the name of the imperial treasury, she called upon her warrantor; but, eviction ensuing, the land was taken and adjudicated to the treasury, the vendor being present; the question is whether the purchaser, not having appealed, could sue her vendor. The answer of Herennius Modestinus was that whether it belonged to someone else or was under obligation at the time of sale and thus was evicted, no argument had been advanced why the purchaser should not have an action against her vendor. 2. Herennius Modestinus replied that if the purchaser appealed and through his own fault lost a good case on a demurrer, there would be no recourse against his warrantor.

64 PAPINIAN, Questions, book 7: A thousand acres were transferred and the river's flood removed two hundred of them. Subsequently, if two hundred be evicted without specification, liability on the stipulation for double the price will be in respect of one fifth, not one quarter of the estate; for what the river took was the purchaser's loss, not that of the vendor. If all the land, reduced in size by the river, should be evicted, legal liability for eviction is not diminished, any more than if the land or slave transferred were reduced in value through negligence. Conversely, the extent of liability for eviction is not increased, if the thing has been improved. 1. But if, while the full measure of land transferred remains intact, two hundred acres are added by alluvion and then there follows eviction of a nonspecific two hundred, there will be liability for a fifth as though two hundred of the original thousand acres delivered have been evicted; for the vendor gives no guarantee in respect of alluvion. 2. Suppose that when one thousand acres have been transferred, two hundred disappear but then, through alluvion, two hundred are added to another part of the estate and, subsequently, there follows eviction from a nonspecific fifth part of the estate; the question was put to me: For what proportion is the vendor-guarantor liable? I said that following from what appears above, there is eviction liability for neither a fifth nor a fourth; but he will be liable as if one hundred and sixty had been evicted of the eight hundred surviving acres of the original thousand; for the remaining forty, which disappeared from the original estate, are to be deemed proportionally part of a new tract. 3. But when some specific part of an estate is evicted, then, although a definite number of acres was transferred, eviction liability is determined not by the extent but by the quality of the land evicted. 4. A person who is owner in common of a single acre, transfers it; opinion is unanimous that he transfers not the whole but his half acre in the same way as if he had transferred a specific site, plot, or the like.

65 PAPINIAN, Questions, book 8: Heirs sold a thing, part of the inheritance, which was subject to a pledge, and gave undertakings against eviction for their respective shares of the inheritance; one redeemed the pledge in respect of his share and then the creditor evicted the pledge; the question was: Could both heirs be sued on the eviction? It was decided that they could, because the pledge was unitary in its ground. It did not commend itself that by means of a defense of fraud, actions should be ceded to the one who paid the creditor, because the two were not alleged to be separately responsible therefor, though the action for dividing an inheritance will be available. How could it matter whether one of the heirs freed the pledge completely or only in respect of his share? the negligence of the one heir should not be harmful to the other.

66 PAPINIAN, Questions, book 28: If the vendor advised the purchaser that there was an actio Publiciana that he could bring or the action provided for public land held on a long lease and the purchaser refrains from proceedings, his deliberate failure to act will go against him and the stipulation will not be enforceable. The case is not the same with the actio Serviana; for though it is an action in rem, its aim is simply to claim possession; and if the vendor receives his money, it disappears; hence, the purchaser cannot sue on his own account. 1. If someone who was away on state service should claim the land, the possessor will have an actio utilis in respect of eviction. Similarly, if a private citizen claim from a soldier, equity again requires that the purchaser should be given an action for eviction. 2. If a second purchaser should appoint his vendor, the first purchaser, as his procurator in proceedings over a slave and, the slave not being returned, condemnation follow, whatever the procurator pays up by reason of the judgment, he pays, as it were, in his own cause and cannot recover on the stipulation; but because the loss consequent upon eviction falls on the second purchaser who can recover nothing by the action on mandate, he should be able to proceed effectively for an award of damages on the sale to him. 3. A division has been made between co-heirs and, one of them being absent, a procurator acts for him, and his principal ratifies his administration. If lands should be evicted, there will be granted against the principal the action which lies for the administration of the affairs of an absent person so that the plaintiff may recover his damages; obviously, on the basis that the value assessed at the time of the division will be reduced or increased according as the land has appreciated or deteriorated.

67 PAPINIAN, Replies, book 10: If, when the true owner has been awarded judgment and has taken away the slave, the vendor later offers the same slave to the purchaser, so that he does not have to pay the purchaser's damages, that is not a good defense.

68 PAPINIAN, Replies, book 11: When a pledge is sold with the provision that the creditor will not be liable in the event of eviction, then, although the purchaser, while not paying the price, has given security for it, he will have no defense, if eviction follows, whereby to avoid paying the price. 1. A creditor who opts to proceed for his debtor's debt by delegatio, instead of pressing for the money, will have no action against the person he has released, if the pledges accepted by the previous creditor be evicted.

69 SCAEVOLA, Questions, book 2: A person, who, in selling a supposed slave, reserves the issue of the man's liberty, will not be liable for eviction, whether the man was already free at the time of delivery or was to attain freedom on the implementation of a condition imposed by a testamentary grant of freedom to him. 1. One who, in delivering him, states a man to be a statuliber is deemed to reserve only that form of liberty which can eventuate on the future realization of a condition in a will already past; hence, if freedom forthwith be granted in the will and the vendor declare the man a stutuliber, he will be liable for eviction. 2. Again, one who delivers a statuliber, specifying a particular condition of his freedom, is held to put his own position at risk, because he is deemed to reserve only that particular condition and not the whole issue of the pending liberty. Suppose him to say that the object of the sale is to give ten and will then become free after a year, when the actual grant of liberty is with the proviso, "let Stichus be free after a year," he will be liable for eviction. 3. What, then, if the vendor should say that a statuliber, in fact required to pay ten, has to pay twenty? Surely, he is guilty of falsehood over the condition. It is certainly true that he has falsely stated the condition, and there were accordingly those who thought that he should be liable on the stipulation against eviction; but the authority of Servius prevailed; and he was of opinion that in this case, it is the action on purchase which lies, doubtless on the ground that the vendor, in saying that twenty are to be given, is reserving the condition as such, which is one of giving. 4. The will has directed that a slave shall be free on rendering his accounts; the heir delivers him saying that he has to give a hundred for his freedom. If there is nothing more that the slave has to give and, in consequence, since the inheritance has been accepted, he becomes free,-the heir becomes liable for eviction, because a freeman has been delivered as though he were a statuliber. If a residue of at least a hundred remain, the heir can be regarded as not having stated an untruth since, being directed to render accounts, the slave is deemed to be directed to give a sum of money derived from the residue. It follows from this that if there be less than a hundred in the residue, say, fifty, the slave will gain his freedom on giving those fifty, and the action on purchase will lie in respect of the remaining fifty. 5. If, in selling a slave, the vendor should say generally that he is a statuliber but conceal the condition of freedom, he will be liable to the action on purchase, if the purchaser be unaware of the nature of the condition. Thus, it is made clear that a vendor, who declares the slave a statuliber without specifying the condition of freedom, will not be liable for eviction, if, the condition being satisfied, the slave gains his freedom, but that he will be liable to an action on the purchase when, knowing the nature of the condition, he does not reveal it; in the same way, a person transferring land who, knowing it to be subject to a definite servitude, says generally, "rights of way existing, whatever they be, are expressly reserved" certainly escapes liability for eviction, but is liable to the action on purchase, because he deceives the purchaser. 6. Where land is sold without a declaration of its extent, a proportion will be deducted from the price, the total amount of which can be computed from the total number of acres stated.

70 PAUL, Questions, book 5: Where there has been eviction, the action on purchase lies, not to recover the price as such but for the loss to the purchaser; if, therefore, the thing has depreciated in value, that loss will fall on the purchaser.

71 PAUL, Questions, book 16: A head of household gave land by way of dowry in his daughter's behalf; if the land should be evicted, there is doubt-and not without good reason-whether purchase or eviction liability ensues, the ground being that the head of household has suffered loss; for, the dowry being that of the woman, it cannot be said that it belongs to the head of household, and he is not required to confer on her brothers the dowry which he himself created, so long as the marriage continues. Let us see, though, whether, even in this case, it is more plausible to say that eviction liability does in fact result; for it is in the father's interest that his daughter should have a dowry and that he should have an expectancy of its recovery, so long as she is in his power. But, should she be emancipated, it could hardly be argued that the eviction stipulation would become enforceable, because there is only one contingency in which the dowry could return to him (namely, that the daughter be still in his power). But could he not at least sue on the ground that, the daughter dying while still married, he could recover the dowry, if the land had not been evicted? Should we not hold that in such a case, since he has an interest in his daughter being dowered, he can sue the promisor forthwith? A father's affection inclines one to that view.

72 CALLISTRATUS, Questions, book 2: When several pieces of land are sold with a single instrument of purchase being expressly prepared, comprising each of them, the case is not one of each piece being part of another, that is, the total extent, but one of several pieces being sold together. And just as, when a man sells several slaves with only a single document of purchase, the action for eviction lies in respect of each individual slave, as it would in respect of other things sold together in one transaction, a single instrument of purchase being drawn up, there will be as many actions for eviction as there are individual items comprised in the purchase. Hence, in the case first put, the purchaser will in no way be precluded from suing the vendor, when one piece of land is evicted on the ground that a deal involving several pieces of land is comprised in a single document of purchase.

73 PAUL, Replies, book 7: Seia gave in dowry the Maevian, Seian, and other estates; her husband, Titius, possessed these lands without dispute during Seia's life; but after Seia's death, her heiress, Sempronia, instituted proceedings on the issue of the ownership of the property; my question is: Can Sempronia, being Seia's heiress, lawfully raise such an action? Paul's reply was this: Sempronia, suing in her own right and not as Seia's heiress, can raise an issue over title to the land, but in the event of eviction from that land, Sempronia, as heiress of Seia, can be sued or, at any rate, be resisted with the defense of fraud.

74 HERMOGENIAN, Epitome of Law, book 2: Should it have been agreed that in the event of eviction, more or less than the amount of the price shall be paid, that agreement is to be honored. 1. Suppose that something seized at the judge's discretion, as a pledge in respect of a judgment, be officially sold and subsequently evicted; an action on purchase will lie against the judgment debtor released by payment of the price-not for the purchaser's loss in sum, but only to the extent of the price paid and interest thereon and taking into account the assessed value of the thing's produce; assuming that there be no liability to restore this to the person effecting the eviction. 2. The issue being raised, the vendor can be sued, not initially to restore the price, but to defend the proceedings. 3. One who sells a debt as it stands is required only to be liable that it does exist, not that anything can be claimed, and that he is not himself fraudulent.

75 VENULEIUS, Stipulations, book 16: Where praedial servitudes are concerned, which tacitly pass with the land and which are successfully claimed by a third party, Quintus Mucius and Sabinus hold that the vendor of the land is not liable for eviction; in their view, no one will be liable for eviction in respect of a burden passing tacitly with the land unless the land has been transferred as wholly free from encumbrances; for in such a case, the vendor is liable for there being any servitude at all. But if the purchaser should claim a right of way or of driving cattle, the vendor will be under no liability, unless he specifically stated that such right would go with the land; should he so state, he will be liable. It is a correct opinion of Quintus Mucius that one who transfers land as wholly free from encumbrance must give unfettered land but is liable for no servitudes being due to the land, unless he specifically said that they would accrue.

76 VENULEIUS, Stipulations, book 17: If you deliver to me a thing belonging to someone else and I am able to retain and hold it as being abandoned, your liability for my security of tenure, that is, the action for eviction, disappears; on that, there is general agreement.