Ulpianus, On the Edict of the Curule Ædiles, Book I. For, as Pedius says, whenever anything has been introduced by law there is a good opportunity for extending it by interpretation or certain construction to other matters, where the same principle is involved.

Ulpianus, On the Edict of the Curule Ædiles, Book I. It is allowed at all times to enter into a contract contrary to the Edict of the ædiles, whether this is done at the time of making the sale, or afterwards.

Ulpianus, On the Edict of the Curule Ædiles, Book I. Labeo states that the Edict of the Curule Ædiles has reference to sales of property, whether it consists of land, portable articles, or of such as moves itself. 1Ad Dig. 21,1,1,1ROHGE, Bd. 10 (1874), S. 339: Die actio emti führt zur Auflösung des Geschäfts, wenn das Interesse eben in der Aufhebung des Vertrages besteht.The Ædiles say: “Those who sell slaves should notify the purchasers if they have any diseases or defects, if they have the habit of running away, or wandering, or have not been released from liability for damage which they have committed. All of these things must be publicly stated at the time that the slaves are sold. If a slave should be sold in violation of this provision, or contrary to what has been said and promised at the time the sale took place, on account of which it may be held that the purchaser and all the parties interested should be indemnified, we will grant an action to compel the vendor to take back the said slave. If, however, after the sale and delivery, the value of said slave shall have been diminished by the act of the slaves of the purchaser, or of his agent; or where a female slave has had a child after the sale; or, if any accession has been made to the property growing out of the sale; or if the purchaser has obtained any profit from said property, he must restore the whole of it. Moreover, if he himself made any additions to the property, he can recover the same from the vendor. Again, if the slave has committed an unlawful act punishable with death, if he has been guilty of any act against the life of some one, or if he has been introduced into the arena for the purpose of fighting wild beasts; all these things must be stated at the time of the sale; for in these instances we will grant an action for the return of the slave. Further, we will also grant an action where a party is proved to have knowingly, and in bad faith, sold a slave in violation of these provisions.” 2The reason for the promulgation of this Edict was to prevent the frauds of vendors, and to provide relief for such purchasers as have been deceived by vendors. We must, however, understand that the vendor, even if he was ignorant of those things which the Ædiles ordered to be observed, will still be liable; and this is not unjust, for a vendor can readily obtain knowledge of these matters, nor does it make any difference to the purchaser why he is deceived, whether through the ignorance, or the cunning of the vendor. 3It must be remembered that this Edict does not have reference to sales made by the Treasury. 4Where, however, the Government makes the sale, this Edict will apply. 5It is also applicable to the sale of property belonging to wards. 6Ad Dig. 21,1,1,6ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.Where the defect, or the disease of a slave is apparent, as is very frequently the case, where defects are manifest from certain indications, it can be said that the Edict does not apply. Provision should only be made to prevent the purchaser from being deceived. 7It should be noted that disease is defined by Sabinus to be some condition of the body which renders it less able to perform the functions for which Nature has bestowed upon us corporeal health. In some cases, disease affects the entire body, in others only a portion of the same, for instance consumption, that is to say, a wasting; a fever is a malady of the entire body; blindness, for example, is the malady of a part, although a man may be born in this condition. There is a great difference between a defect and a disease, as where someone is a stammerer, for this is rather a blemish than a state of ill-health. I think that it is for the sake of removing all doubt on this subject, that the Ædiles have made use of the term “the same,” in order that no uncertainty may remain. 8Hence, if the defect or disease is such as to interfere with the use and services of the slave, it will afford ground for the action to compel him to be taken back; but we must remember that any very trifling affection or fault cannot cause the slave to be considered sickly or unsound. Therefore, a slight feverishness, or an old quartan fever, which at the time is about to disappear, or a trifling wound will not cause the vendor to be considered at fault, because he did not call attention to it; for things of this kind can be passed over. We will now give some examples of slaves who are diseased and unsound. 9It is asked by Vivianus, whether a slave who did not always manifest signs of insanity, and sometimes spoke rationally, should still be considered sane. Vivianus says that he is sane, nevertheless; for we should understand that some persons are of sound mind although they may sometimes exhibit mental defects; otherwise, he states that the result would be that we would deny an infinite number of persons to be sane in accordance with this principle, as, for instance, those who are giddy, superstitious, irascible, and insolent, as well as others who have similar mental defects. More, however, is guaranteed with reference to soundness of body than respecting mental defects. For he asserts that a corporeal defect will sometimes extend to and vitiate the mind, for example, where a man is said to have his mind affected as the result of fever. What must be done in a case of this kind? If the mental defect is such that attention should have been called to it by the vendor, and he did not do so when he was aware that it existed, he will be liable to an action on purchase. 10Vivianus also holds that although a slave may have run around temples in a distracted manner, and given oracular answers; still, if he was not accustomed to act in this manner at the time when he was sold, this is no defect; nor will an action lie because he occasionally conducted himself in this way; just as none will lie where he formerly had had a fever. But if he continues to be addicted to this vicious habit, and is accustomed to run distractedly around temples, and give oracular answers, as if demented; even if he does this through sport, it is a defect, but a defect of the mind, and not of the body, and therefore he cannot be returned; as the Ædiles only mention corporeal blemishes; nevertheless, an action on purchase can be brought against the vendor. 11He also says that the same rule applies with reference to slaves who are beyond measure timid, greedy, avaricious, or irascible,

Ulpianus, On the Edict of the Curule Ædiles, Book I. And he denies that a slave can be returned on account of these defects, but he grants an action on purchase. 1If, however, a bodily defect influences the mind, for instance where a slave speaks disconnectedly on account of fever, or makes ridiculous speeches in public, like an insane person, where the mental defect is caused by a corporeal one, he can be returned. 2Pomponius says that certain authorities held that slaves who are gamblers and given to wine are not included in the Edict, just as those who are gluttons, impostors, liars, or quarrelsome, are not included. 3Pomponius also says that although the vendor is not compelled to guarantee that his slave is very intelligent, still, if when he sells him he is so stupid or foolish that no use can be made of him, this will be considered a defect. We see that the rule is adopted that the terms “defect” and “disease” are only applicable to the body, but the vendor is not required to guarantee a slave to be free from a mental defect, unless he specially stated the fact, otherwise, he will not be liable; and hence an express exception was made with reference to slaves who are wanderers, and accustomed to run away, for these are mental and not bodily defects. Wherefore, some authorities hold that animals that are timorous and in the habit of kicking should not be classed with such as are unsound, for these are mental and not physical defects. 4In a word, no matter how serious the mental defect may be, it will not afford ground for a return of the property, unless it was represented not to exist, when in fact it did. An action on sale, however, can be brought where the vendor knowingly concealed the mental defect, but where the defect is a corporeal one alone, or affects both the body and the mind, the property can be returned on this account. 5It should be noted that mention is made in general terms of disease, and not of any dangerous ailment. Pomponius says that this should not seem extraordinary, for nothing there has reference to matters to which a disease of this kind is a hindrance. 6He also says that it is not every disease which affords a ground for the return of property, as, for instance, an insignificant running of the eyes, or a trifling pain in the teeth or the ear, or a small sore, nor, in fact, does any slight fever come within the scope of this Edict.

Ulpianus, On the Edict of the Curule Ædiles, Book I. Pomponius very properly says that this Edict has reference not only to chronic diseases, but also to such as are temporary in their character. 1Trebatius says that tetter is not a disease, if the slave can make use of the limb upon which it appears as well as he can of the other. This opinion of Trebatius appears to me to be correct. 2A slave who has been castrated is not, I think, diseased or defective, but sound; just as one who has but one testicle, who is still capable of reproduction.

Ulpianus, On the Edict of the Curule Ædiles, Book I. It has been asked whether a slave whose tongue has been cut off is to be considered sound. This inquiry is put by Ofilius with reference to a horse, and he says that the horse should not be held to be sound.

The Same, On the Edict of the Curule Ædiles, Book I. Ofilius also says that where a finger of the slave has been cut off, or any portion of one of his members lacerated, even though he should recover from the injury, still, if his services are less available on this account, he is not held to be sound. 1I read also that Cato said that: “Where a finger has been cut off from the hand, or a toe from the foot of a slave, he is diseased.” This is correct, according to the distinction above mentioned. 2Moreover, where a slave has more than the ordinary number of fingers or toes, and his movements are not impeded in any way by their number, there is no ground for his return; because the number of his fingers or toes should not be taken into account, but whether he is able to make use of a larger or smaller number without any difficulty. 3The question has been asked whether a near-sighted slave is sound, and I think that he should be returned. 4Partial blindness is held to be a disease, that is to say, where a slave cannot see either in the morning or evening, which species of ailment the Greeks call weakness of eyesight. Some persons think that this affection is the same as that where a man sees nothing when a light is brought near him. 5It has been asked whether a stammerer, one who lisps or speaks inarticulately, or very slowly, or who is knock-kneed or bow-legged is sound, and I think that he is.

Ulpianus, On the Edict of the Curule Ædiles, Book I. Anyone who has a tumor is diseased, as well as one who has a polypus, 1Pedius says that a slave who has one eye or one cheek larger than the other, if he can use them just as well, is considered sound; for he states that any inequality of the cheeks, eyes, or arms, if they detract nothing from the services of the slave, do not afford ground for his return. But where one side is smaller, or one leg shorter, it may offer some impediment, and therefore, in this instance, the slave can be returned. 2Where a slave is born with a goiter, or has prominent eyes, he is considered sound. 3It also should be remembered that a left-handed slave is not diseased or defective, unless he uses his left hand more frequently on account of the weakness of his right, but he is then not left-handed, but crippled. 4The question arose whether a slave who has a bad breath is sound. Trebatius says that a person whose breath smells is not diseased any more than one who smells like a goat, or who squints; for this may happen to anyone on account of a filthy mouth. But, however, where this occurs through some bodily defect, for example, from the liver or the lungs, or from any other similar cause, the slave is diseased.

Ulpianus, On the Edict of the Curule Ædiles, Book I. The question was asked whether a female slave was diseased who always brought forth dead children. Sabinus says that if this was caused by an uterine affection, she must be so considered. 1Where a female slave, who is pregnant, is sold, it is held by all the authorities that she is sound, for it is the greatest and most important function of a woman to conceive and preserve a child. 2A woman in child-birth is also sound, provided nothing else happens which would cause her some bodily illness. 3Cælius says Trebatius makes a distinction in a case of sterility, for if a woman is sterile by nature, she is healthy, but if this occurs through some defect of the body she is not. 4The question also arises with reference to one who suffers from incontinence of urine, and Pedius says that a man is not less healthy on this account if he passes urine in bed, while overcome with sleep or wine, or where this occurs through sluggishness in rising. Where, however, he cannot hold back the collected fluid through some defect of his bladder, a slave can be returned, not because he passed his urine in bed, but for the reason that he has a defective bladder; and this opinion is correct. 5Pedius also says that if the uvula of anyone is amputated, it prevents rather than calls for the return of a slave, because the morbid condition is diminished. I think that if the morbid condition disappears, there will be no ground for the return, but if the defect remains, there will be ground for it. 6Where anyone is born with fingers that are united, he is not considered to be sound, if he is prevented from using his hands. 7Where the vagina of a female slave is so narrow that she cannot become a woman, it is settled that she should not be considered sound. 8Where a slave has enlarged tonsils, the question arises whether he can be returned as being unsound. If this is understood in the sense in which I think it is, that is, if the condition has existed for so long a time that the tumors of the throat which have been formed cannot now be removed, the slave is unsound. 9Ad Dig. 21,1,14,9ROHGE, Bd. 5 (1872), S. 324: Voraussetzung des Dolus: Täuschung und UebervortheilungWhere a vendor expressly states that the slave has a certain disease but is sound in other respects, the parties must abide by what was agreed upon, for where their rights of action have been relinquished they cannot be permitted to resume them, unless the vendor knowingly and deliberately concealed the disease; for, in this instance, a reply should be granted on the ground of fraud. 10Ad Dig. 21,1,14,10ROHGE, Bd. 10 (1874), S. 355: Der Verkäufer ist nicht bloß zur Vertretung der heimlichen, sondern schlechthin aller nicht angezeigten, nicht unerheblichen Mängel verbunden, sofern er nicht beweist, daß der Käufer sie gekannt hat oder kennen mußte.Where the existence of a blemish was not expressly mentioned by the vendor, but it was of such a character that it would be apparent to everyone; for example, if the slave was blind, or had a manifest and dangerous scar on his head, or on some other part of his body, Cæcilius says that the vendor will not be liable on this account, any more than if he had expressly mentioned the defect, for it is held that the Edict of the Ædiles has only reference to such diseases and defects as the purchaser was, or could be ignorant of.

Ulpianus, On the Edict of the Curule Ædiles, Book I. Ofilius defines a fugitive slave to be one who remains outside the house of his master for the purpose of taking to flight, or to conceal himself. 1Cælius says that a fugitive slave is one who leaves his master with the intention of not returning to him, even though, having changed his mind, he does return; for he says that in an offence of this kind repentance does not remove guilt. 2Cassius, also, states that a fugitive slave is one who leaves his master with a deliberate intention not to return. 3It is also stated by Vivianus that a slave is understood to be a fugitive more on account of his intention than through the fact of his flight, for a slave who runs away to escape from an enemy or a robber, or to avoid a fire or the destruction of a house, although it is true that he is taken to flight, still he is not a fugitive. Again, a slave who has fled from a teacher to whom he has been delivered for the purpose of instruction is not a fugitive, if, perchance, he took to flight because he was badly treated by him. He holds the same opinion where a slave runs away from a party to whom he was lent, if he did so for the same reason. Vivianus holds the same opinion if the slave runs away because he has been treated with too much severity. This, however, only applies where he runs away from those persons and returns to his master, but if he does not return to his master he says that there is no doubt that he should be considered a fugitive. 4Proculus, having been interrogated with reference to a slave who had concealed himself in the house of his master for the purpose of finding an opportunity to escape, says that although one who remains in the house cannot be held to have run away, he is, nevertheless, a fugitive. If, however, he concealed himself only for the purpose of waiting until his master’s anger had subsided, he is not a fugitive; just as where one whom his master intends to whip betakes himself to a friend in order to induce him to intercede for him. Nor is he to be considered a fugitive who went away for the purpose of committing suicide; otherwise anyone could call a slave a fugitive who ascended to the top of the house for the purpose of throwing himself down therefrom, since he should rather be classed with those intending to commit suicide; for he says that the opinion held by many unreasoning persons, namely, that he is a fugitive slave who remains away for a night without his master’s consent, is not correct; as the offence must be determined by the intention of the slave. 5Vivianus also says that, where a young slave left the house of his master and returned to his mother, and the question is asked whether or not he is a fugitive; he is one if he went away for the purpose of concealing himself to avoid returning to his master; but if he did so in order the more readily to obtain pardon for some offence by means of his mother, he is not a fugitive. 6Cælius also stated that if you purchase a slave who had thrown himself into the Tiber, and who had only left his master with the intention of committing suicide, he is not a fugitive. If, however, he had the intention to run away in the first place, and afterwards, having changed his mind, he threw himself into the Tiber, he is a fugitive. He holds the same opinion in the case of a slave who hurled himself down from a bridge. All these opinions given by Cælius are correct. 7He also says that if your slave should run away and take with him his sub-slave, and the latter unwillingly, or being ignorant of his design, accompanies him, and having obtained an opportunity to return to you, neglects to do so, he is not considered to be a fugitive. Where, however, he understood what was taking place at the time he took to flight, or subsequently learned the intention of the slave, and could have returned to you, and was unwilling to do so, it is another thing. He also holds that the same rule should apply to the case of a slave stolen by a thief. 8Cælius also says that if a slave who was on the land of his master abandons the house with the intention of running away, and someone seizes him before he leaves your land, he is to be considered a fugitive; for it is the intention which renders a slave a fugitive. 9He also says that a slave who has only taken one or two steps in attempting to escape, or has even begun to run, is not a fugitive, if he cannot in his flight escape from his master who is in pursuit of him. 10He also very properly says that flight is a species of liberty, in other words, that, for the time, he is free from the power of his master. 11Where a slave is given in pledge, he still has the debtor as his master; but if, after the creditor has exercised his right to obtain possession of him, he runs away from him, he can be considered a fugitive. 12It is asked by Labeo and Cælius, if the slave flees to a place of asylum, or betakes himself to one where slaves are accustomed to be sold or exposed for sale, whether he is a fugitive. I think that one who acts in this way is not a fugitive, because it is held to be lawful to do so publicly. Nor, indeed, do I think that he is a fugitive who betakes himself to the statue of the Emperor for refuge, for he does not do this with the intention of running away. I also hold the same opinion with reference to one who takes refuge in some asylum or other place, because he does not do this with the intention of running away. If, however, he ran away in the beginning, and afterwards betook himself to the asylum, he is none the less a fugitive on this account. 13Cælius also says that it is settled that he is a fugitive who withdraws to some place from whence his master will not be able to recover him, and that he is still more a fugitive who betakes himself to some place from which he cannot be removed. 14Labeo defines a wandering slave as a little vagabond; and, oh the other hand, a fugitive as a great wanderer. We correctly define a wandering slave as one who, in fact, does not run away, but frequently roams about, without any reason, and, after having wasted his time in trifling matters, returns home late. 15It was stated by Cælius that a freedman lived with his patron, the entire house being occupied by both. The slave of the freedman went away with the intention of not returning to him, but remained concealed during the entire night in the lodging of the patron, and Cælius says that he is a fugitive. Cælius says it is evident that if the entire house was not in charge of both persons, and the freedman lived in an apartment which was used as a common and promiscuous passage for all the rooms, the contrary opinion should be held; and Labeo approves this. 16Cælius also states that where a slave was sent into a province by his master, and having heard that the latter was dead, and that he had been liberated by his will, remained in the same employment, and began to conduct himself as a freedman, he is not a fugitive; for he says he did not become a fugitive by falsely stating that he was free, because he did this without the intention of taking to flight. 17Where the Ædiles say: “When the slave has not been released from liability for damage committed,” this should be understood to mean that the vendor is not obliged to state that he has committed no damage, but merely that he is free from liability for damage committed; that is to say, that he is not subject to a noxal action. Hence, if the slave committed some damage which has been made good, he is held to have been released from liability for the same. 18We should understand that damages committed against individuals are such as result from offences which are not public crimes, and are those from which noxal actions arise, since provision is especially made for capital crimes by the Edict; but private injuries give rise to pecuniary damages, where a party refuses to surrender the slave by way of reparation, and prefers to pay the damages assessed by the court. 19Where the slave is one who cannot be manumitted in accordance with the Imperial Constitutions; or if he has been sold by his master under the condition that he shall be kept in chains; or where he has been condemned by someone in authority; or if he is to be sent out of the country; it is perfectly just that this should be stated at the time when he is sold. 20Where anyone asserts that a slave has some good traits which in fact he has not, or that he is free from bad habits and this is not the case; as, for instance, if he should say that he was not a thief, and he is one, or if he should say that he is a skilled workman, and he is not; for parties of this kind who do not furnish what they agree to do, are held to have acted contrary to their statements and promises.

Ulpianus, On the Edict of the Curule Ædiles, Book I. It must, however, be remembered that there are certain things that the vendor is not obliged to furnish, even though he may state that they exist, for example, such as relate to the mere commendation of the slave; for instance, if he should say that he is frugal, honest, and attentive; for, as Pedius says, there is a good deal of difference where the vendor makes a statement in praise of the slave, and where he promises that he will furnish what he said he would. 1It is evident that if he should say that the slave was not a gambler or a thief, and had never fled for refuge to the statue of the Emperor, he must make good these statements. 2Ad Dig. 21,1,19,2ROHGE, Bd. 10 (1874), S. 339: Die actio emti führt zur Auflösung des Geschäfts, wenn das Interesse eben in der Aufhebung des Vertrages besteht.There is this difference between a statement and a promise, for we understand a statement to be merely what is uttered in speech and terminated by the words themselves; a promise, however, may be either a bare assurance that something will be done, or one that can be exacted, or one based on an agreement. In accordance with this, he who promised anything to a party stipulating for it in a case of this kind can either be sued in an action on stipulation, or in one for the return of the property, which is not unusual; since a party who can be sued in an action on purchase can also be proceeded against by means of an action to recover the property. 3Those things are only to be considered as stated or promised which are spoken in order to form the basis of an obligation, and not by way of praise. 4It must be noted that where a party promises a slave who is a skilled workman, or states that the slave is such, he is by no means required to furnish one who is perfect, but one who is, to a certain extent dexterous; so that you will not be led to believe that he is either highly accomplished, or, on the other hand, that he has no knowledge of his trade. Therefore, it will be sufficient if the slave belongs to the class commonly called artisans. 5The Ædiles further say, “We will grant an action to the purchaser and to all those whom this matter concerns.” Thus they promise an action to the purchaser and to his successors who are entitled to all his rights. We should consider the purchaser to be the party who buys the property for a price; where, however, anyone makes an exchange, it must be said that he occupies the position of both purchaser and vendor, and both can proceed under this Edict. 6The time fixed for the return of the property is six available months. If, however, the slave is not returned, but an action is brought for the deficiency in his value, this can be done within a year. Moreover, the time allowed for the return begins to run from the day of the sale, or, where anything has been stated or promised, from the day on which the statement or promise was made.

Ulpianus, On the Edict of the Curule Ædiles, Book I. To return property is to cause the vendor to take back what he had in the first place, and because this is effected by giving it up, this is called a surrender, or restitution of the property, so to speak. 1Pomponius says that where a slave is returned to the vendor by the purchaser, the latter must promise to make good any loss resulting from his bad faith; and therefore security is necessary to provide against the slave having been given in pledge by the purchaser, or his having been ordered to commit theft from, or cause some injury to, him to whom he was given up. 2Pomponius also says that security should sometimes be given on both sides, not only for the past but also for the future; as, for example, where the purchaser, or his agent, joins issue on behalf of the slave who is returned; or where proceedings are instituted against the slave; or where he himself brings suit in his own name. He says, moreover, that security must be given where the purchaser has judgment rendered against him without any bad faith on his part, or makes payment, as, in these instances, it is no more than proper for him to furnish a guarantee; or where he acquires anything from the legal proceedings which he instituted; or where he has been guilty of fraud or negligence to prevent property from coming into his hands, this should be delivered to the vendor at the same time. 3He also says that the purchaser should give security for the future to him who knowingly sold him a slave who was accustomed to run away, if the slave took to flight without the fault of the purchaser, and the vendor, notwithstanding, had judgment rendered against him, for the purchaser must then give security that he will pursue the slave, and, if he recovers him, return him to the vendor:

Ulpianus, On the Edict of the Curule Ædiles, Book I. Moreover, when the return is made of the slave, if the latter has been injured in mind or body by the purchaser, he must make good the damage to the vendor; as, for example, if the slave has been corrupted, or has become a fugitive through the cruel treatment of the purchaser. Therefore, as Pomponius says, it must be determined by the judge to what extent the slave has been depreciated in value, and the amount must be made good to the vendor. If, however, the slave was returned without resorting to judicial proceedings, and the purchaser refuses to give up the other property which we have mentioned, an action on sale will be sufficient to secure the rights of the vendor. 1Ad Dig. 21,1,23,1ROHGE, Bd. 11 (1874), Nr. 67, S. 202: Verlust der Redhibitionsbefugnis durch Veräußerung, Verbrauch, Verfügung über die gekaufte Sache.ROHGE, Bd. 16 (1875), Nr. 81, S. 321: Folgen der Verarbeitung bezw. Umgestaltung eines Theils der gekauften Waare mit erkennbarem Fehler bezüglich der Redhibitionsbefugnis.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 394, Note 2.The Ædiles direct all accessions to the sale also to be returned, and any additions which the vendor himself has furnished must likewise be made good; so that neither party, if the sale is rescinded, will obtain anything more than he would have had if the sale had not been made. 2Where a slave has committed a capital crime, this also must be mentioned. To commit a capital crime is to be guilty of an offence which is punishable with death, for the ancients were accustomed to put the crime for the penalty. We understand a capital crime to be one perpetrated through fraud and malicious intent, but where anyone commits an offence by mistake or accident, the Edict does not apply. Wherefore, Pomponius says that a person who has not reached puberty, or one who is insane, cannot be held to have committed a capital crime. 3Where a slave has made an attempt to put an end to his own life, this also must be mentioned. He is considered a bad slave who has committed some act for the purpose of terminating his existence; as, for example, one who has made a noose out of a rope, or taken some poisonous drug, or thrown himself down from a high place, or does something else by which he expects his death will be caused; since he is one who will probably try to do to another what he attempted against himself. 4Where the party who sold an unsound slave is either himself a slave, or a son under paternal control, an action de peculio, based upon the Edict of the Ædiles, will lie against the master or the father, for although these actions seem to be penal ones, still, as they arise out of a contract, it must be said that they can be brought in the name of those who are under the control of others. Hence, where a son subject to paternal authority, or a female slave, made the sale, it must also be held that the actions established by the Edict of the Ædiles will be available. 5The actions arising from this Edict can also be brought against all kinds of heirs. 6Although men who are free may be serving us in good faith as slaves, or slaves belonging to another may have made the sale, it can be stated that they also are included in this Edict. 7Ad Dig. 21,1,23,7ROHGE, Bd. 11 (1874), Nr. 67, S. 202: Verlust der Redhibitionsbefugnis durch Veräußerung, Verbrauch, Verfügung über die gekaufte Sache.ROHGE, Bd. 16 (1875), Nr. 81, S. 321: Folgen der Verarbeitung bezw. Umgestaltung eines Theils der gekauften Waare mit erkennbarem Fehler bezüglich der Redhibitionsbefugnis.Julianus says that the judgment in a case involving the return of property restores both parties, that is to say the vendor, as well as the purchaser, completely to their former condition. 8Wherefore, where the slave steals something either from the purchaser or from someone else on account of which theft the purchaser may be compelled to make restitution, he will not be ordered to return the slave to the vendor unless the latter indemnifies him. But what, said Julianus, if the vendor should refuse to receive the slave? He holds that he would not be forced to indemnify him to any extent, any more than to have judgment rendered against him for the price; and that the purchaser must suffer this loss through his own negligence, because when he could have delivered up the slave by way of reparation, he preferred to pay the damages assessed by the court. It seems to me that the opinion of Julianus is the more equitable one. 9If, where the slave is returned, anything has come into the hands of the purchaser by means of said slave, or did not come into his hands through his own fault, it must be returned; and this includes not only profits which he may have obtained, or any wages he may have received from the slave, or from anyone to whom the latter has been hired, but also whatever he may have acquired from the vendor himself, because he was slow in delivering him the slave; but also if the purchaser has received any profits from any other possessor whatsoever he must surrender them all. Moreover, he must give up what he may have obtained by way of profit, as well as any legacy or estate which may have fallen to the slave; and it is not taken into account whether the vendor could or could not have acquired these things if he had not sold the slave; for if we suppose that the vendor was such a person as could not receive anything by will, this fact will in no way prejudice him. Pedius, indeed, thinks that it should not be considered whether the testator, when he appointed the slave his heir or bequeathed him a legacy, had this fact in view; because the sale itself will stand, and this fact will not benefit the purchaser. On the other hand, he says that if the heir had been appointed in consideration of the vendor, we will still hold that the purchaser should not restore the estate to the latter, if he was unwilling to return the slave.

Ulpianus, On the Edict of the Curule Ædiles, Book I. The Ædiles also desire that the purchaser should indemnify the vendor for any depreciation of the value of the slave, but only where this took place after sale and delivery. But if it happened before this, it would not come under this proceeding. 1Therefore, if the purchaser himself, or a member of his household, or his agent, was responsible for the deterioration, he will be liable to the action. 2All who are in servitude are embraced in the term “household,” not only freemen who are serving in good faith as slaves, but also the slaves of others; those persons who are under the control of the purchaser we understand also to be included in this definition. 3Mention is made in this action of an agent. Neratius, however, says that in this instance not every kind of an agent is to be understood, but one who has charge of the entire business of the purchaser, or who has the management of that branch of it through which the deterioration of the slave was caused. 4Pedius states that it is but just that the purchaser should be responsible for the act of his agent and household only where the slave could not have suffered the damage if he had not been sold to him. But where he would have suffered it even if he had not been sold, in this instance the purchaser had the right to deliver up the slave by way of reparation for the damage committed, and he says that, with reference to the injury committed by the agent, the purchaser is only compelled to assign to the vendor the rights of action which he has against his agent. 5But what if the slave had been deteriorated through the negligence, but not through the fraud of the purchaser? He will have judgment rendered against him also in this case. 6The deterioration sustained by the slave has reference not only to his body but also to the debasement of his mind; as, for instance, where he has become corrupted by the example of his fellow-slaves of the household of the purchaser, and has become a gambler, a drunkard, or a vagabond. 7It must, however, be noted that the purchaser is not permitted for reasons of this kind to surrender the slave by way of reparation, for he is not personally liable for the acts of his slave or for those of his agent. 8It also should be remembered that he must make good all those things which are mentioned in the Edict of the Ædiles, if they have taken place before issue has been joined, for it is necessary for them to be enumerated, in order that they may be taken into account, if any of them occurred before issue was joined in the case. After issue has been joined, however, the entire question of the restitution of the slave must be determined in court, and any profits which have accrued, as well as the fact of the deterioration of the slave, and all other matters, will be included. For just as soon as the judge obtains jurisdiction of the case it becomes his duty to decide everything relating to it. Those questions, however, which have arisen before issue was joined do not properly come under his jurisdiction, unless they were expressly assigned to him for his decision. 9It is also added in the Edict: “The money paid for the slave to the vendor and whatever was surrendered on the ground of accessories shall not be returned, and the party who is liable for the payment of said money shall not be released.” 10The Ædiles established the regulation that the purchaser should deliver to the vendor all those things which have been mentioned above, and that then he must refund him the purchase-money.

Ulpianus, On the Edict of the Curule Ædiles, Book I. The purchaser should receive the money which he paid for the slave, as well as everything else under the head of accessories. We should understand by this not only the price which was paid to the vendor, as, for instance, the purchase-money and the interest on the same, but also whatever has been expended on account of the sale. This, however, should only be paid where the expense was incurred with the consent of the vendor, but where anything was given voluntarily, the purchaser will not be entitled to credit for it, for he should not exact from the vendor what he gave of his own free will. But what if money had been paid by way of tax, which in fact follows the purchaser? We hold that this also should be returned, for the purchaser should depart indemnified.

Ulpianus, On the Edict of the Curule Ædiles, Book I. It must be understood that if the purchaser does not furnish the vendor with all that is required by this action, he cannot have judgment rendered against the vendor in his favor. If, however, the vendor does not furnish the purchaser with what is required, judgment shall be rendered against him. 1Again, the purchaser must be released from liability for the money which was due to him, whether he was responsible to the vendor himself or to someone else. 2Moreover, judgment is rendered against the vendor to the extent of the interest of the purchaser. Therefore, let us see whether this may exceed the price or not. And, in fact, the judgment includes the purchase-money as well as the accessories; but should the purchaser also recover the interest on the price on the ground that he is entitled to it as a portion of what is due to him, especially as he restores any profits which he may have acquired? It is settled that he is entitled to it. 3Where the purchaser has sustained any damage, or has expended any money on account of the slave, he can recover it by the decision of the court in such a way, however (as Julianus says), that the vendor shall not have judgment rendered against him on account of these things; but the purchaser shall not be compelled to surrender the slave to the vendor, unless he indemnifies him.

Ulpianus, On the Edict of the Curule Ædiles, Book I. If the vendor refuses to take back the slave, he should not have judgment rendered against him for a larger amount than the price; hence, with reference to the damage which the purchaser has sustained on account of the slave, we only grant the right to retain his person, and the vendor will be able to avoid liability for this if he refuses to accept the slave, but by doing so he will not escape liability for the purchase-money, as well as the accessories of the same. 1Where the vendor either stated or guaranteed that the slave was not a thief, he will be liable on his guarantee if the slave commits a theft; for, in this case, he must be understood to be a thief, not only if he steals from a stranger, but also if he appropriates the property of his master. 2If a female slave is returned, any children which have been born to her after the sale must also be given up, whether there is one, or more of them. 3Where, however, the usufruct has been added to the mere ownership of the property, it undoubtedly must also be returned. 4Where the slave has acquired a peculium while in the possession of the purchaser, what shall we say with reference to it? If, indeed, it was obtained by managing the property of the purchaser, it must be held that it shall remain with the latter, but if it was obtained from some other source, it must be surrendered to the vendor. 5Where the purchaser leaves several heirs, let us see whether all of them must consent to the return of the slave. Pomponius says that the consent of all is not required, and that they can appoint an agent to act for them, in order that the vendor may not sustain any injury if he receives the share of the slave owned by one party, and have judgment rendered against him for the shares of the others to the amount of the deficiency in value of the slave. 6Ad Dig. 21,1,31,6ROHGE, Bd. 10 (1874), S. 275: Actio redhibitoria. Zurückgabe der fehlerhaften Sache. Untergang derselben ohne Verschulden des Empfängers nach erklärtem Rücktritte.He also says that if the slave is dead, or has been taken back by the vendor, each one of the heirs can properly bring an action for his respective share. Moreover, they will receive their proportionate shares of the purchase-money and accessories as well as the profits of the crops and their accessories; and in case the slave should be deteriorated, each one of them will be liable pro rata unless it may happen that a division cannot be made; as, for instance, in the case of the offspring of a female slave; for then the same rule will be observed which applies where the mother herself is sold, since we have denied that she herself can be partially returned. 7Marcellus also states that if a slave held in common himself purchases a slave, and, in case he is to be returned, one of his masters can not bring suit to compel the vendor to take back his share of the slave, any more than where a purchaser leaves several heirs, and all of them do not give their consent for the return of a slave. 8Marcellus also says that one of two joint-owners of a slave cannot bring an action on purchase to compel the vendor to surrender to him his half of the slave, if he pays him his share of the price; and he adds this rule must be observed in the case of purchasers, for the vendor who sells property which is pledged has a right to retain the same until the buyer pays for it. 9Pomponius holds that if an heir of the purchaser, or his family, or his agent, either through neglect or malicious intent, commits any act which diminishes the value of the property, it is but just that he should be liable for the entire amount by a decision of court. Moreover, it is more advantageous for all the heirs to appoint a single agent to bring suit for them; for if the slave is deteriorated by the fault of one of said heirs, this will be made good by all, and the others will be entitled to an action in partition against him, because they sustained the loss on his account, and were prevented from returning the slave. 10Where the vendor leaves several heirs, the slave can be returned to each one, in proportion to his share in the estate. The same rule applies where the slave is sold to several parties. For if an individual has purchased a slave from several owners or several have purchased from one, or several slaves have been bought from a single owner, the better opinion is that if there are several vendors, each one of them is absolutely bound to take back the slave; but where different shares in the slave are purchased from the individual holders, it may properly be held that one of them can be compelled to take back his share, and an action can be brought against another to recover the excess of value paid for the slave. Again, where several persons purchase a slave from one vendor, then each one of them can institute proceedings for his respective share; but if they purchase the slave conjointly, each can bring an action for the return of the slave as a whole. 11Ad Dig. 21,1,31,11ROHGE, Bd. 10 (1874), S. 275: Actio redhibitoria. Zurückgabe der fehlerhaften Sache. Untergang derselben ohne Verschulden des Empfängers nach erklärtem Rücktritte.If the slave who is to be returned should die, the question arises whether he lost his life through the fault of the purchaser, or his family, or his agent; as, if this was the case, he is considered to be still alive, and everything must be transferred to the vendor which would have been required if the slave had lived. 12Ad Dig. 21,1,31,12ROHGE, Bd. 10 (1874), S. 275: Actio redhibitoria. Zurückgabe der fehlerhaften Sache. Untergang derselben ohne Verschulden des Empfängers nach erklärtem Rücktritte.We understand negligence to mean not only that which is gross, but also that on account of which it must be held that the purchaser was responsible for having, in any way, occasioned the death of the slave; as, for instance, if he did not provide a physician in order that the slave might be cured, or if, through his own fault, he provided one who was incompetent. 13Ad Dig. 21,1,31,13ROHGE, Bd. 10 (1874), S. 275: Actio redhibitoria. Zurückgabe der fehlerhaften Sache. Untergang derselben ohne Verschulden des Empfängers nach erklärtem Rücktritte.We hold this rule to be applicable where the slave dies before issue has been joined, but if his decease took place after issue had been joined, then the judge must decide how the slave died; for, in the opinion of Pedius, everything that happens after issue has been joined in an action must be determined by the wisdom of the judge. 14Ad Dig. 21,1,31,14ROHGE, Bd. 10 (1874), S. 275: Actio redhibitoria. Zurückgabe der fehlerhaften Sache. Untergang derselben ohne Verschulden des Empfängers nach erklärtem Rücktritte.What we have stated with reference to an agent also applies to the case of guardians, curators, and others whose duty it is to appear for others. This is also the opinion of Pedius, and he adds that it is not unjust to make the principal responsible for the negligence of those to whom the management of his business has been entrusted. 15Ad Dig. 21,1,31,15ROHGE, Bd. 10 (1874), S. 275: Actio redhibitoria. Zurückgabe der fehlerhaften Sache. Untergang derselben ohne Verschulden des Empfängers nach erklärtem Rücktritte.Pedius also says that children subject to paternal control are also included in the term “household,” since the action for the return of property renders all members of the household responsible for their acts. 16Where anyone brings an action to recover damages for the diminished value of a slave, on account of his having taken to flight, and afterwards sues because the slave is unsound; for what amount should judgment be rendered? There is no doubt that the action for damages because of the flight of the slave can be brought several times. Julianus, however, says that care must be taken to prevent the purchaser from making a profit, and recovering the appraisement of the same property twice. 17Ad Dig. 21,1,31,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 19.An action in factum for the recovery of the price will lie in case the slave is returned; in which instance inquiry is not made whether there was good reason for the return of the slave, but merely where he has been returned. This is not unreasonable, as it would be unjust, after the vendor by taking back the slave had acknowledged that there was cause for doing so, for the question to be asked is whether he should or should not have been returned, nor is any inquiry made as to whether the return took place within the time established by law. 18It is evident that this action requires the slave to be taken back. Otherwise, if he was not taken back, the action would fail, even though it was agreed by the mere consent of the parties that he should be returned. Hence, it is not the agreement to take him back which establishes the ground for this proceeding, but the return itself. 19Everything which went with the slave at the time of the sale should also be restored by means of this action. 20Ad Dig. 21,1,31,20ROHGE, Bd. 7 (1873), S. 1: Contractsauslegung. Sprachgebrauch des Contracts- und Erfüllungsortes.As the stipulation for double damages is perpetual, it is therefore held that an action on sale can be brought, even if the vendor has not given security for double the value of the slave; for matters of usage and custom should always be included in bona fide actions. 21Persons who sell slaves should always state their nationality, at the time of the sale, for very frequently the place of the nativity of a slave either attracts or deters the purchaser, and hence it is to our interest to know in what country he was born; for it is presumed that some slaves are good because they are sprung from a nation which has not an evil reputation, and others are considered to be bad because they are derived from a nation which is rather disreputable than otherwise. If the origin of the slave was not mentioned, an action on this ground will be granted to the purchaser and to all those interested in the matter, by means of which the purchaser can compel a slave to be taken back. 22Ad Dig. 21,1,31,22Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 323, Note 14; Bd. II, § 387, Note 22.Where property is sold with the understanding that if it does not suit it may be returned within a specified time, this agreement is held to be valid. Where, however, nothing was agreed upon with reference to the time, an action in factum will be granted to the purchaser within sixty available days, to compel the property to be taken back; but not beyond that period. But, if it should be agreed that the property can be returned without reference to time, I think that this contract will be valid. Again where the period of sixty days fixed for the return of the article has elapsed, an action will be granted to the purchaser if proper cause be shown. 23In this investigation of cause it should be ascertained whether the vendor was responsible for the delay, or whether he was not present, so that the slave could be returned to him; or whether there was any other good reason for not delivering the slave within the time designated because he was not satisfactory. 24The same rule must be observed in these actions as in the case of the offspring of a female slave, as well as in that of profits, and other accessories which have been mentioned where a slave to be returned dies before this is done. 25It is held by those learned in the law that any accession to the purchase is a part of the sale.

Ulpianus, On the Edict of the Curule Ædiles, Book I. Hence Pomponius says that it is but just that where anything is alleged to be accessory to a sale, it must be furnished in as perfect a condition as should have been done if it had been the principal object sold; for, according to the Civil Law, an action on purchase will lie to compel property said to be accessory to be furnished in good condition; for example, where certain casks are mentioned as accessory to land. This rule, however, only applies where anything is expressly set forth as being accessory; for if a slave is sold together with his peculium, the vendor will not be compelled to guarantee the soundness of the slaves forming part of said peculium, because he did not specify any certain property as being accessory, and it was only necessary to furnish the peculium in whatever condition it might be; and just as he was not obliged to furnish a certain amount of peculium, so likewise, he was not compelled to give this guarantee. Pomponius says that the same rule should be observed where either an estate or the peculium of a slave is sold; for the Edict of the Ædiles does not apply to property belonging to an estate or a peculium. He is of the same opinion where a tract of land is sold with all the means of cultivating it, and slaves are included in this designation. I think that this opinion is correct, unless it is stated that the parties had some other express intention. 1Where property which has been sold is returned, a slave who is an accessory to the same must also be returned; even though he had no defect.

Ulpianus, On the Edict of the Curule Ædiles, Book I. It frequently happens that slaves who are sound are returned with others that are diseased, where they cannot be separated without being inconvenienced, or without doing violence to natural affection; for what if the purchaser preferred to retain a son and return his parents, or vice versa? It is necessary to observe the same rule with reference to brothers, and to slaves united in marriage.

Ulpianus, On the Edict of the Curule Ædiles, Book I. The Ædiles direct that a slave who has grown old in service shall not be sold as one unaccustomed to servitude. This provision of the Edict was framed to avoid the tricks of vendors, for, in every instance, they take care that purchasers shall not be deceived by vendors. For example, as many vendors are accustomed to sell slaves as novices, who are not such, in order that they may dispose of them for more money, since it is presumed that slaves who are inexperienced will be more straightforward, better adapted to service, more tractable and skillful for every kind of work, while those that are experienced and have grown old in servitude are hard to change, and adapt to one’s customs. Hence, because slave-dealers know that persons are rather inclined to the purchase of slaves who are novices, they, for this reason, mingle those who are experienced with them and sell them all for the novices. The Ædiles provide by this Edict that this shall not be done; and, therefore, where a slave is sold in this manner to a purchaser who is ignorant of the facts, he can be returned.

Ulpianus, On the Edict of the Curule Ædiles, Book I. It should be noted that this Edict has reference solely to sales, not only those of slaves, but also those of every other kind of property. It seems strange that nothing was stated with reference to leases. The reason given for this is that they were never included in the jurisdiction of the Ædiles, or because leases and sales are not contracted under the same circumstances.

Ulpianus, On the Edict of the Curule Ædiles, Book I. He who has appropriated property belonging to another with the intention of profiting by it, even though, having changed his mind, he may afterwards restore it to the owner, is a thief; for no one by repentance ceases to be responsible for such a crime.