ENACTMENTS OF JUSTINIAN.
|~ Book XXI ~|
( S. P. Scott, The Civil Law, V, Cincinnati, 1932 ).
1. Ulpianus, On the Edict of the Curule Aediles, Book I.
Labeo states that the Edict of the Curule Aediles has reference to sales of property, whether it consists of land, portable articles, or of such as moves itself.
(1) The Aediles 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."
(2) The 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 Aediles 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.
(3) It must be remembered that this Edict does not have reference to sales made by the Treasury.
(4) Where, however, the Government makes the sale, this Edict will apply.
(5) It is also applicable to the sale of property belonging to wards.
(6) 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.
(7) It 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 Aediles have made use of the term "the same," in order that no uncertainty may remain.
(8) Hence, 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.
(9) It 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.
(10) Vivianus 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 Aediles only mention corporeal blemishes; nevertheless, an action on purchase can be brought against the vendor.
(11) He also says that the same rule applies with reference to slaves who are beyond measure timid, greedy, avaricious, or irascible,
2. Paulus, On the Edict of the Curule Aediles, Book I.
3. Gaius, On the Edict of the Curule Aediles, Book I.
Or insolent, humpbacked, crooked, or affected with some skin disease, or with the itch, or dumb or deaf:
4. Ulpianus, On the Edict of the Curule Aediles, Book I.
And he denies that a slave can be returned on account of these defects, but he grants an action on purchase.
(1) If, 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.
(2) Pomponius 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.
(3) Pomponius 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.
(4) In 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.
(5) It 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.
(6) He 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.
5. Paulus, On Sabinus, Book XI.
There is as much difference between these blemishes which the Greeks call "defectiveness" and disorders, or diseases, or illness, as there is between such corporeal imperfections and ailments which render a slave incapable of service.
6. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) Trebatius 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.
(2) A 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.
7. Ulpianus, On Sabinus, Book XI.
Where, however, a slave has been castrated in such a way that any part of his body required for the purpose of generation is absolutely absent, he is considered to be diseased.
8. Ulpianus, On the Edict of the Curule Aediles, 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.
9. The Same, On Sabinus, Book XLIV.
Sabinus says that a dumb person is diseased, for it is evident that to be deprived of speech is a disease. A person who speaks with difficulty, however, is not diseased, any more than one is whom it is hard to understand; and it is clear that one whose words are without any meaning is diseased.
10. The Same, On the Edict of the Curule Aediles, 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.
(1) I 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.
(2) Moreover, 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.
(3) The question has been asked whether a near-sighted slave is sound, and I think that he should be returned.
(4) Partial 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.
(5) It 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.
11. Paulus, On Sabinus, Book XI.
He who has lost a tooth is not diseased, for the greater portion of mankind have lost some teeth, and are not for that reason considered diseased, especially since we are born without teeth, and are not less sound on that account, until we have them; otherwise no old man would be considered healthy.
12. Ulpianus, On the Edict of the Curule Aediles, Book I.
Anyone who has a tumor is diseased, as well as one who has a polypus,
(1) Pedius 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.
(2) Where a slave is born with a goiter, or has prominent eyes, he is considered sound.
(3) It 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.
(4) The 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.
13. Gaius, On the Edict of the Curule Aediles, Book I.
A slave who is lame is also considered diseased.
14. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) Where 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.
(2) A woman in child-birth is also sound, provided nothing else happens which would cause her some bodily illness.
(3) Caelius 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.
(4) The 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.
(5) Pedius 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.
(6) Where anyone is born with fingers that are united, he is not considered to be sound, if he is prevented from using his hands.
(7) Where 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.
(8) Where 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.
(9) Where 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.
(10) 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, Caecilius 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 Aediles has only reference to such diseases and defects as the purchaser was, or could be ignorant of.
15. Paulus, On Sabinus, Book XI.
A female slave who has her periods twice a month is not healthy. The same rule applies to one who has no such discharge, unless this is due to age.
16. Pomponius, On Sabinus, Book XXIII.
Where a slave is thoroughly cured, so that he is restored to his former condition, he must be considered as having never been diseased.
17. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) Caelius 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.
(2) Cassius, also, states that a fugitive slave is one who leaves his master with a deliberate intention not to return.
(3) It 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.
(4) Proculus, 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.
(5) Vivianus 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.
(6) Caelius 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 Caelius are correct.
(7) He 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.
(8) Caelius 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.
(9) He 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.
(10) He 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.
(11) Where 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.
(12) It is asked by Labeo and Caelius, 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.
(13) Caelius 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.
(14) Labeo 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.
(15) It was stated by Caelius 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 Caelius says that he is a fugitive. Caelius 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.
(16) Caelius 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.
(17) Where the Aediles 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.
(18) We 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.
(19) Where 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.
(20) Where 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.
18. Gaius, On the Edict of the Curule Aediles, Book I.
Where a vendor asserts that a slave has some good quality, and the purchaser complains that this is not true, he will be entitled to an action for the return or the appraisement of the slave, in order to recover the deficiency in his value; for example, if he should say that the slave is steady and industrious, swift of foot, or vigilant, or that he had increased his peculium on account of his frugality; and he, on the contrary, is ascertained to be changeable, insolent, lazy, given to sleep, and a glutton. All these things are considered to signify that what the vendor had asserted cannot be rigorously exacted from him, but that he must be treated with some degree of moderation; so that, for instance, if he declared that the slave was steady, such gravity and constancy as would be shown by a philosopher ought not to be expected from him; and if he asserted that he was industrious and vigilant, constant labor by day and night should not be required of him; but all these qualities he should be expected to possess to a certain extent, according to what is proper and just. We understand the same rule to apply to any other statements which the vendor may make.
(1) Where the vendor says that the slave is an excellent cook, he must furnish one of the very best belonging to that calling. If, however, he should merely say that he was a cook, he is held to have complied with his statement if he furnishes a cook of moderate ability. The same rule applies to other skilled laborers.
(2) Again, if anyone should merely assert that the slave has a peculium, it is sufficient if he has only a very small peculium.
19. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) It 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.
(2) 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.
(3) Those 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.
(4) It 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.
(5) The Aediles 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.
(6) The 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.
20. Gaius, On the Edict of the Curule Aediles, Book I.
If, however, the statement was made some time before the sale, and then a stipulation was entered into several days afterwards, Caelius Sabinus says that the purchaser can institute proceedings on this ground from the day when the slave was sold.
21. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) Pomponius 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.
(2) Pomponius 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.
(3) He 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:
22. Gaius, On the Edict of the Curule Aediles, Book I.
And that neither he nor his heir will do anything to prevent the vendor from recovering his slave.
23. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) The Aediles 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.
(2) Where 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.
(3) Where 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.
(4) Where 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 Aediles, 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 Aediles will be available.
(5) The actions arising from this Edict can also be brought against all kinds of heirs.
(6) Although 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.
(7) 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.
(8) Wherefore, 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.
(9) If, 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.
24. Gaius, On the Edict of the Curule Aediles, Book I.
Generally speaking, it must be held that whatever the slave has acquired from the purchaser otherwise than in managing his property, it seems to be just should be returned.
25. Ulpianus, On the Edict of the Curule Aediles, Book I.
The Aediles 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.
(1) Therefore, 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.
(2) All 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.
(3) Mention 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.
(4) Pedius 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.
(5) But 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.
(6) The 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.
(7) It 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.
(8) It also should be remembered that he must make good all those things which are mentioned in the Edict of the Aediles, 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.
(9) It 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."
(10) The Aediles 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.
26. Gaius, On the Edict of the Curule Aediles, Book I.
Let us see whether it is not unjust for the purchaser to be compelled to surrender the property, and have recourse to the action on judgment, if he could not recover anything on account of the property of the vendor; and should not matters be so arranged that the purchaser can give security to restore the slave if the purchase-money is refunded to him within a certain time?
27. Ulpianus, On the Edict of the Curule Aediles, 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.
28. Gaius, On the Edict of the Curule Aediles, Book I.
Where a vendor does not furnish security with reference to the matters mentioned in the Edict of the Aediles, they promise an action against him for the return of the property within two months; or one to the extent of the interest of the purchaser, within six months.
29. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) Again, 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.
(2) Moreover, 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.
(3) Where 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.
30. Paulus, On the Edict of the Curule Aediles, Book I.
Moreover, if the purchaser, in an action for the return of a slave, joins issue, or he himself brings suit in his own name, security must be furnished by both parties that the vendor will pay the amount of the judgment rendered against him, where there is no bad faith on his part, and that the purchaser will deliver to the vendor anything that comes into his hands or which on account of his bad faith he has been unable to obtain by means of the action which he has brought in behalf of the slave.
(1) The purchaser shall be entitled to any necessary expenses incurred by him on account of the illness of the slave after issue has been joined, and Pedius says that expenses previously incurred should be specifically mentioned; but Aristo holds that food for the slave should not be taken into account, for the reason that nothing is demanded for the time that the slave was in service.
31. Ulpianus, On the Edict of the Curule Aediles, 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.
(1) Where 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.
(2) If 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.
(3) Where, however, the usufruct has been added to the mere ownership of the property, it undoubtedly must also be returned.
(4) Where 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.
(5) Where 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.
(6) 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.
(7) Marcellus 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.
(8) Marcellus 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.
(9) Pomponius 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.
(10) Where 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.
(11) 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.
(12) 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.
(13) 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.
(14) 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.
(15) 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.
(16) Where 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.
(17) 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.
(18) It 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.
(19) Everything which went with the slave at the time of the sale should also be restored by means of this action.
(20) 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.
(21) Persons 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.
(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.
(23) In 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.
(24) The 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.
(25) It is held by those learned in the law that any accession to the purchase is a part of the sale.
32. Gaius, On the Edict of the Curule Aediles, Book II.
Therefore, as has been stated above, the vendor is required to notify the purchaser of any disease, defect, or other fault, included in the Edict; and as it is therein set forth that he must guarantee that the slave has none of these defects, so also, when a slave is transferred to another party as an accessory to property, the vendor is compelled to make the same declaration and guarantee. This should be understood to be necessary, not only where it has been expressly stated that the slave Stichus is an accessory to the land conveyed, but also where, in general terms, all the slaves on the land constitute an accessory to the sale.
33. Ulpianus, On the Edict of the Curule Aediles, 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 Aediles 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.
(1) Where 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.
34. Africanus, Questions, Book VI.
Where several things of the same kind are sold at the same time, as, for instance, slaves, comedians, or singers, it is held that it must be ascertained whether one price was paid for all of them, or whether payment was made for each individually, since sometimes one sale, and then again, several, are understood to have been made. It is important for this to be asked, so that if any of said slaves happens to be diseased or unsound, it may be determined whether all of them should be returned at the same time.
(1) Sometimes, although prices have been fixed for each head, there is still but one purchase, so that all of them can be, or should be returned on account of the defect of a single one; for instance, where it is evident that the intention was to purchase or to sell them all together, as frequently occurs where slaves are actors; or where four-horse teams, or a pair of mules, are sold; so that it may be advantageous for the parties to have all, or none of them.
35. Ulpianus, On the Edict of the Curule Aediles, 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.
36. Pomponius, On Sabinus, Book XXIII.
Where several slaves are sold for one price, and we bring the action under the Edict of the Aediles with reference to one of them, an estimate of the value of said slave is only made where the price was fixed for the entire number indiscriminately. But if, after the price had been fixed for each one of the slaves, all of them were sold for an amount equal to the combined prices of the different individuals, we must then adopt the combined price made for each slave, whether he is worth more or less.
37. Ulpianus, On the Edict of the Curule Aediles, Book I.
The Aediles 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 Aediles 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.
38. The Same, On the Edict of the Curule Aediles, Book II.
The Aediles say: "Those who sell beasts of burden shall state openly and fairly if they have any disease or defect; and if they have been splendidly caparisoned for the purpose of selling them, they shall be delivered to the purchasers in this condition. If this has not been done, we will grant an action for the return of the ornaments, or for the return of the animals on account of the ornaments, within sixty days; or where the sale should be rescinded by reason of any disease or defect, within six months; or for the return of the purchase-money where the animals were worth less than they were sold for within a year. If a pair of beasts of burden are sold at the time, and one of them is in such a condition that he should be returned, we will grant an action to enable both of them to be returned."
(1) The Aediles mention the return of beasts of burden in this Edict.
(2) The reason for the promulgation of this Edict is the same as the one which prompted that for the return of slaves.
(3) Substantially the same rules are to be observed with reference to them as with respect to slaves, so far as diseases and defects are concerned. Therefore what we have already said on this point is also applicable here, and if the animal should die, he can be returned in the same way as is done in the case of a slave.
(4) But let us see whether all kinds of cattle are included under the head of beasts of burden. It is difficult to include them all, for the term "beasts of burden" means one thing, and that of cattle means another.
(5) Hence a clause has been added to this Edict, the words of which are as follows: "In the case of all kinds of cattle, vendors must observe the same rules which we have laid down with reference to the soundness of beasts of burden."
(6) Wherefore a doubt can no longer exist whether oxen are included in the terms of this Edict, for although they are not embraced in the designation of beasts of burden, it is certain that they are included in the term cattle.
(7) There are certain things which are classed as diseases in men which are not considered such in animals; as, for example, where a horse is castrated, it is neither considered a disease nor a defect; because this does not detract either from his strength or his usefulness, although he will never be fit for reproduction. Caelius also stated that all animals which have been castrated are not defective on this account, unless they have become weaker through the operation, and therefore a mule is not unsound. He says that Ofilius entertained the same opinion, namely, that a castrated horse is sound, just as an eunuch is also sound; but if the buyer was ignorant of this and the vendor knew it, an action on purchase will lie. What Ofilius states is correct.
(8) The question arose, if a mule is such that it cannot be changed when harnessed, whether it is sound. Pomponius says that it is, for very many carriage animals are such that their position in harness cannot be changed.
(9) He also says that if an animal is born with such a disposition or form of body that it cannot be harnessed with another, it is not sound.
(10) An animal can be returned not only on account of some disease, but also where there is ground for doing so because it does not conform to the representations or guarantee of the vendor; just as in the case of slaves.
(11) Caelius says that the rule with reference to the adornment of horses for the purpose of making a better sale does not apply where this has been done before the time of the sale, that is to say, two days before; but at the very time the sale was made, or, when offered for sale, it is exhibited caparisoned in this manner to those to whom it is expected to sell it. And every time that such decoration takes place, it is stated both in the action and in the Edict that the animals have been produced, caparisoned for the purpose of selling them, as an animal can be produced, caparisoned for the purpose of making a journey, and afterwards be sold.
(12) Where several animals have been sold, all of them will not be subject to return on account of the trappings of one of them; for although one team may be defective, the other should not be returned on this account.
(13) Where a pair of mules is disposed of, one of which is unsound, the value of the latter is not to be taken into consideration in estimating the difference; but the value of the team should be taken into account; for where both were sold for the same price this must not be divided in two, but the loss of value of both of them together must be considered, and not merely the deterioration of the one which is blemished.
(14) Where a pair of match-horses is sold, it is stated in the Edict that if there is cause for the return of one of them both should be returned; in which instance the interest of the purchaser as well as that of the vendor should be considered, since the animals are not separated. Likewise, where a team of three horses, or one of four is sold, all of them should be returned. Where, however, there are two pairs of mules, and one mule is unsound, only the pair to which it belongs shall be returned, and not the others. But if they are not divided into pairs, but four mules are merely sold for one price, there will be the return of one mule, and not of all, as, where a number of horses are sold for breeding purposes, we hold that if one of them should be unsound, it is not necessary for all of them to be returned. We hold the same opinion where several slaves are sold for one price, unless they cannot be separated; as, for instance, where they are actors, or buffoons.
39. Paulus, On the Edict of the Curule Aediles, Book I.
40. Ultpianus, On the Edict of the Curule Aediles, Book II.
For these should not be separated.
(1) Next, the Aediles say, "That a dog, a hog, a small wild boar, a wolf, a bear, a panther, a lion,"
41. Paulus, On the Edict of the Curule Aediles, Book II.
And, generally speaking, "Or any other animal likely to commit injury, whether it be at large or tied, but incapable of being restrained so as not to cause damage,"
42. Ulpianus, On the Edict of the Curule Aediles, Book II.
Cannot be kept in a place where people are constantly passing, and where the said animal may injure anyone, or cause any damage. If these provisions should be violated, and a freeman lose his life in consequence, two hundred solidi shall be paid; and if a freeman should be injured, the party responsible shall have judgment rendered against him for a sum which may seem in the wisdom and justice of the judge to be proper; and where any other person or any property is injured, the said party shall be compelled to pay double the amount of the damage caused.
43. Paulus, On the Edict of the Curule Aediles, Book I.
Most authorities say that an ox which strikes with its horns is vicious, just as is the case with mules that kick. Horses, also, which are frightened without any cause and run away, are also said to be vicious.
(1) A slave who takes refuge with a friend of his master, in order to obtain his intercession with the latter, is not a fugitive; not even if he has the intention of not returning home if he does not obtain pardon. He is not yet a fugitive, for the reason that the term "flight" does not merely apply to design but also to the act itself.
(2) Where a slave, through being instigated by another to leave his master, takes to flight, he is a fugitive; even though he would not have run away if it had not been for the advice of the person who persuaded him.
(3) If a slave of mine who was serving you in good faith runs away, he is a fugitive, whether he knows that he belongs to me or is ignorant of the fact, unless he did so with the intention of returning to me.
(4) A slave attempts suicide who does so on account of wickedness, bad habits, or some crime which he has committed; but not where he takes such a step because he is unable to endure bodily suffering.
(5) Where anyone purchases a slave, and is deprived of him by force, he can recover fourfold damages on the ground of robbery, and he can afterwards return the slave, and the vendor must refund the price which he received. Where, however, he suffered injury through his slave, and has instituted proceedings on that account, he cannot return him to the vendor, unless the purchaser should bring an action against the party who has beaten the slave with a whip, or subjected him to torture.
(6) A slave should sometimes be returned, even though we may have brought an action for his appraisement, that is to say, the estimate of the excess of the price above his true value. For if he is worthless, so that it is not to the advantage of his master to have such a slave, as, for instance, where he is subject to fits of rage, or is insane, even though an action for his appraisement may have been instituted, it is, nevertheless, the duty of the judge to cause the purchase-money to be repaid after the slave has been returned.
(7) If anyone should cause the return of a slave with the intention of defrauding his creditors, and would not have returned him unless he had intended to defraud them; the vendor will be liable to the creditors for the value of the slave.
(8) When a slave is pledged, he will remain bound even though he be returned; just as where he, or the usufruct in him, has been disposed of, he cannot lawfully be returned unless he is redeemed and restored free from the liability contracted under the pledge.
(9) Where a slave is purchased under a condition, and proceedings with a view to his return are instituted before the condition has been fulfilled, they will be void, because the purchase is not yet complete, and cannot be set aside by the decision of a judge; and therefore if an action on purchase or sale, or one for the return of property is filed before the condition has been fulfilled, suit can afterwards be brought a second time.
(10) In some instances even where an absolute sale has taken place, it remains in abeyance on account of a condition of law; as for example, where a slave in whom one party has the usufruct and the other the ownership, buys something; for as long as it is uncertain out of whose property he pays the price, the title to the property will be in suspense, and therefore neither of the parties can bring an action for the return of the slave.
44. The Same, On the Edict of the Curule Aediles, Book II.
The Aediles, with great justice, refuse to permit a slave to be accessory to property of less value than himself, in order to avoid fraud being committed either against the Edict or against the Civil Law, and also, as Pedius says, against the dignity of mankind; otherwise the same rule would apply as in the other matters, since it would be ridiculous for a tract of land to be considered accessory to a tunic. Anything, however, may be permitted to be accessory to the sale of a slave, for very frequently the peculium is more valuable than the slave himself, and sometimes a sub-slave, classed as an accessory, is worth more than the principal slave who is sold.
(1) An action is granted under this Edict against the party who had the greatest interest in the sale of the slave, because dealers in slaves generally form partnerships, so that whatever they do is held to be transacted in common; for it seemed just to the Aediles that the actions which they established should be brought either against the party who owned the greater share of the property — or at least who did not own less than the others — in order that the buyer might not be compelled to engage in litigation with many persons; although an action on purchase can be brought against each individual partner in proportion to his share; for this kind of men are much inclined to gain, as well as to the commission of dishonorable acts.
(2) In an action for the return of property, or for its appraisement, a doubt arises whether a party who has sold a slave belonging to another will be liable, at the same time, on the ground of eviction, or because of unsoundness, or on account of the flight of the slave. For it may be said that the purchaser has no further interest where he has been deprived of the possession of the slave by a better title, whether he is sound or a fugitive; but it is to the interest of the purchaser that he should have been sound when he possessed him on account of his services, and the obligation does not increase because of what may have subsequently happened, for just as soon as the slave is delivered, the stipulation relating to the interest of the purchaser becomes operative.
45. Gaius, On the Edict of the Curule Aediles, Book I.
An action for the return of a slave has a twofold effect, for sometimes the vendor will have judgment rendered against him for double damages, and sometimes merely for simple damages. For if he refuses to refund either the price of the slave or any accessories attaching to him, and will not release him from the liability incurred on his account, he will be ordered to pay double the amount of the price and the accessories. Where, however, he returns the price and the accessories or releases the slave from the obligation incurred for his benefit, judgment for simple damages should be rendered against him.
46. Pomponius, On Sabinus, Book XVIII.
When you return a slave to me, you are not obliged to guarantee that he is not liable for any thefts or damages, except where he has committed them by your order, or by that of the party to whom you may have sold him.
47. Paulus, On Sabinus, Book XI.
If you manumit a slave whom you have purchased, Labeo says that you will neither be granted an action to return him, nor one to recover the amount of the excess of his value which you have paid; just as the right of action for double damages is extinguished. Therefore the right of action founded on something which has been represented or guaranteed will also be lost.
(1) The actions arising from the Edict of the Aediles continue to exist even after the death of the slave;
48. Pomponius, On Sabinus, Book XXIII.
Provided the slave dies without the fault of the purchaser, or of his family, or of his agent.
(1) He who complains of unsoundness or disease in a slave that he has purchased, and wishes to retain him until satisfaction is given him, should be heard.
(2) The rights of the purchaser shall not be prejudiced where, having been barred from bringing an action for the return of the slave within six months, he desires to institute proceedings for the appraisement of his value within a year.
(3) It is just that the Edict of the Aediles should not apply to anyone who has sold a slave in chains, for it is far more effective to do this than merely to state that he has been in chains.
(4) In actions founded on the Edict of the Aediles, it is no more than proper that the vendor should be permitted to plead an exception if the purchaser was aware that the slave was in the habit of running away, or had been in chains, or had any other similar faults which would entitle the vendor to be released.
(5) The action founded on the Edict of the Aediles will lie both in favor of an heir and against him; but inquiry should, nevertheless, be made as to any acts subsequently committed by the heirs, and as to whether they had a right to institute such proceedings.
(6) These actions can be brought not only with reference to slaves, but also concerning every kind of animals, so that they will lie against me, even if I had only purchased the usufruct of a slave.
(7) When suit for the return of a slave because of his soundness is brought, it is permitted to proceed and make allegations as to one defect, and if any other should afterwards appear, a second action with reference to it can be instituted.
(8) It is not customary, in the case of simple sales, to make use of the action for the return of property.
49. Ulpiamis, Disputations, Book VIII.
There is no doubt that proceedings for the return of property can also be brought in the case of the sale of a tract of land, as, for example, where land is sold which is injurious to health; for it should be returned. And it is but equitable to hold that the purchaser is not liable for the taxes at any time after the return of the property.
50. Julianus, On Minicius, Book IV.
A slave with varicose veins is not sound.
51. Africanus, Questions, Book VIII.
Where one slave buys another who is diseased or unsound, and his master brings an action on purchase, or one for the return of the slave; it should be ascertained, not whether the master, but whether the slave was aware of these defects, so that it makes no difference whether he purchased the slave to be added to his peculium, or acquired him in the name of his master; or whether he purchased any particular slave, or one in general, by the order of his master; for then it becomes a question of good faith, whether the slave has not been deceived by the party with whom he transacted the business; and, on the other hand, whether the offence which the slave committed in making the contract should prejudice his master. If, however, the slave purchased the sub-slave by the order of his master, and the latter knew that he was unsound, the vendor will not be liable.
(1) Where such a transaction is made with an agent, there is no doubt that if the latter knew the slave to be diseased or unsound, he cannot bring an action on this account; although he himself will, nevertheless, be liable to an action based on voluntary agency. Where, however, the agent himself did not know that the slave was unsound, and purchased him by the direction of his principal, who was aware of it; and he brings an action before the return of the slave in the name of his principal, it is held that a valid exception cannot be interposed against him.
52. Marcianus, Rules, Book IV.
If a slave should commit a theft against his master, it is not necessary to state this at the time of the sale of the slave, for a return will not be granted for this reason. But if he said that this slave was not a thief, he will be liable on the ground of making such a representation and guarantee.
53. Javolenus, On the Last Works of Labeo, Book I.
Where a slave has tertian or quartan fever, or gout or epilepsy, he it not held to be legally sound, even on days when he is free from these diseases.
54. Papinianus, Opinions, Book IV.
There is no ground for an action for the return of a slave where one has been purchased for a good consideration, and runs away, if he had not done so previously.
55. The Same, Opinions, Book XII.
Six available months from the time that proceedings should have been instituted are granted in which to file an action for the return of a slave, and the power to proceed will not be held to have existed where the party was ignorant that he was in the habit of running away, and this fault had been concealed. Still, the gross ignorance of the purchaser on this point must not be excused.
56. Paulus, Questions, Book I.
Latinus Largus: "I ask whether a slave can be returned to a surety of the vendor." I answered that if the surety was taken with reference to everything connected with the sale, Marcellus thinks that the slave can be returned to the surety.
57. The Same, Questions, Book V.
Where one slave purchases another, and his master brings an action for his return, the vendor is not obliged to pay him, unless he delivers to him everything included in this action, the whole amount in fact, and not merely what has reference to the peculium; for if the master brings an action on sale, unless he pays the entire purchase-money, he will not accomplish anything.
(1) Where, however, a slave or a son makes a sale, an action for the return of the slave will involve his peculium, and the ground for the return is also included in the peculium. Nor does it concern us that the slave was not part of the peculium before he was returned, for a slave cannot belong to the peculium who is still the property of the purchaser, but the ground for the return itself is considered to be part of the peculium. Therefore, if a slave purchased for ten thousand sesterces is only worth five thousand, we say that the latter sum belongs to the peculium. This is the case if he owes his master nothing, or has not been deprived of the peculium. If, however, he owes his master more, the result will be that he must surrender the slave, and will not recover anything.
58. The Same, Opinions, Book V.
I ask, if a slave has fled from the purchaser, and it has been decided that good cause for his return exists, whether the vendor should not pay the appraised value of the property carried away by the slave, before the latter is returned to him. Paulus answered that the vendor should be compelled not only to pay the price of the slave, but also the appraised value of what was stolen by him, unless he is ready to deliver up the slave by way of reparation for the property taken.
(1) I also ask if the vendor refuses to pay the appraised value of the property and the purchase-money, whether the slave should be retained, and an action on the peculium granted, or whether double the price of the slave sought to be returned should be demanded on the ground of a stipulation. Paulus answered that an action will lie for the recovery of the price of the slave, and also for double his value on account of the stipulation. An opinion has already been given with reference to the property stolen by the slave.
(2) I purchased a slave under the stipulation of double his value if he was returned, and he then ran away with some of my property. Having afterwards been found, and interrogated in the presence of respectable men as to whether he had previously run away from the house of the vendor, he answered that he had. I ask whether this answer of the slave is entitled to consideration. Paulus replied that if other proofs of his former flight are not lacking, then the answer of the slave should be believed.
59. Ulpianus, On the Edict, Book LXXIV.
Where a slave is sold in such a condition that he should be returned, it is unjust that the vendor should receive his price.
(1) Where anyone purchases two slaves for one price, and one of them is in such a condition that he ought to be returned, and the vendor then brings an action for the entire amount, an exception should be filed by way of defence. Where, however, suit is brought for a portion of the price, the better opinion is that an exception will not be a bar, unless the facts are such that both slaves should be returned on account of the unsoundness of one of them.
60. Paulus, On the Edict, Book LXIX.
After the return of the slave has been made, everything should be placed in its former condition just as if there had been no sale.
61. Ulpianus, On the Edict, Book LXXX.
Whenever a servitude is in question, and the vendor is defeated, he should refund to the purchaser the amount of the excess paid by the latter, if he was aware that the said servitude had been imposed upon the property.
62. Modestinus, Differences, Book VIII.
It must be held that the Edict of the Curule Aediles has no reference to property which is donated. For why should the donor bind himself to take back anything when no price is involved in the transaction? But what if the property has been improved by the party to whom it was given? Can the donor be sued for the value of the improvements? It must be said that this is by no means the case, for the donor should not suffer a penalty on account of his liberality. Therefore, where anything is given away, it will not be necessary for those guarantees to be given which the Aediles require where property is sold. It is clear that the donor ought to bind himself (and he usually does so) with reference to fraud, in order that he may not, with fraudulent intent, revoke what he bestowed by way of kindness.
63. Ulpianus, On the Edict of the Curule Aediles, 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 Aediles, or because leases and sales are not contracted under the same circumstances.
64. Pomponius, Epistles, Book XVII.
Labeo says that if you purchase several slaves for one price, and you wish to bring an action with reference to one of them, an appraisement of all the slaves should be made, just as is done in appraising land when suit is brought because of the loss of a portion of said land by eviction.
(1) He also says that if you sold several slaves for one price, and guaranteed them to be sound, and only a part of them are sound, an action can properly be brought with reference to all, because of the representation and guarantee.
(2) He also says that a beast of burden can wander away and escape, but proceedings cannot be instituted on the ground that it is a wanderer or a fugitive.
65. Venuleius, Actions, Book V.
It is a mental rather than a physical defect, for a slave to wish to constantly be present at exhibitions, or to carefully examine paintings, or even to be untruthful, or to have similar faults.
(1) Whenever a chronic disease is mentioned, Cassius says this means one which is harmful. The word, however, should be understood to signify an affection which is constant, and not ended by time. A chronic disease is held to be one which attacks a man after his birth, for the word chronic means continuous.
A slave can be styled experienced, or a novice. Caelius says that
an experienced slave should be valued, not on account of the time
he has been in servitude, but because of his ability and qualifications;
for where anyone, at a sale, purchases a slave who is a novice and
employs him in some service, he is immediately included in the number
of those who are experienced, since inexperience is understood to
be dependent, not upon the undeveloped state of the mind, but upon
the condition of servitude. It makes no difference whether he understands
Latin or not, for a slave is not held to be experienced merely because
he happens to be learned in the liberal arts and sciences.
Where a purchaser loses the entire property which he bought or only a part of it, on account of a better title, he has recourse to the vendor. Where he loses a portion of it, or an undivided part of land, he has recourse for the amount which he has lost. If, however, he loses a certain portion of the tract, and not an undivided share of the same, he is entitled to recourse according to the quality of the land of which he has been deprived. But what if he should be deprived of either the best, or the worst part of the land? The quality of the land should be ascertained, and he will be entitled to recourse in proportion to its value.
2. Paulus, On Sabinus, Book V.
If double damages are not promised, and an action is brought on the ground of eviction; judgment for double damages should be rendered against the defendant.
3. The Same, On Sabinus, Book X.
In the sale of a slave, his peculium is always understood to be reserved. Where a slave who was sold took away with him a certain portion of his peculium, and an action of theft is brought against the purchaser on this account, the latter cannot have recourse to the vendor for double damages on the ground of a stipulation, because the vendor, at the time of the sale, should guarantee the slave to be free from liability for theft, or damage. This right of action, however, only originates after the sale has taken place.
4. Ulpianus, On the Edict, Book XXXII.
The question arises whether he who sold the slave should give a surety against eviction, who is commonly called a second surety. It has been settled that he need not do so, unless it has been agreed upon.
(1) Where a guardian makes a sale in the name of a minor, and eviction follows, Papinianus says in the Third Book of Opinions that an equitable action will be granted against him for whose benefit the guardianship is being administered. He adds, however, that this only applies to what was included in his property at the time. Let us see whether the ward will be liable for the entire amount if the guardian should not be solvent. This I think to be the better opinion, for a contract made with a guardian is not void.
5. Paulus, On the Edict, Book XXXIII.
The vendor of a slave stated that his peculium was an accessory. If a sub-slave was taken away by eviction, Labeo says that the vendor will not be liable on this account, for if the slave did not form part of the peculium he would not constitute an accessory, but if he did, the purchaser sustained an injury through the decision of the judge; but the case is different if the vendor had expressly stated that the slave was an accessory, for, in this instance, he would be obliged to guarantee that the slave borrowed part of the peculium.
6. Gaius, On the Provincial Edict, Book X.
Where a tract of land is sold, it is necessary to furnish security against eviction, according to the custom of that part of the country where the transaction took place.
7. Julianus, Digest, Book XIII.
Where a party buys from a ward a slave who was substituted for him, he can bring an action on purchase against the substitute, as well as one under the stipulation on the ground of eviction; but he will be entitled to neither of these actions against the ward himself.
8. The Same, Digest, Book XV.
The vendor of a slave must guarantee the purchaser to the amount of the interest that the latter had that the slave should belong to the vendor. Wherefore, if the purchaser should lose, by eviction, the offspring of a female slave or an estate which the slave had entered upon by his order, he can bring an action on purchase. And just as the vendor is bound to deliver to him the slave which he sold him, so he is bound to make good to the purchaser everything that he could have acquired through the slave, if he had not been deprived of him.
9. Paulus, On the Edict, Book LXXVI.
If you should sell me a slave belonging to Titius, and Titius should afterwards appoint me his heir; Sabinus says that, in case of eviction, the right of action is lost, since the slave cannot be taken from me, but that recourse must be had to an action on purchase.
10. Celsus, Digest, Book XXVII.
If anyone should sell and transfer to me a right of way which he has in common with another, as if he were the sole owner of the same, he will be liable to me on the ground of eviction, if the other party refuses to transfer to me his right.
11. Paulus, Opinions, Book VI.
Lucius Titius bought lands in Germany, beyond the Rhine, and paid a portion of the purchase-money. When suit was brought against the heir of the purchaser for the remainder, the latter set up a counterclaim alleging that these possessions had been partially sold by order of the Emperor, and partly distributed as rewards among veteran soldiers. I ask whether this risk must be assumed by the vendor? Paulus answered that future cases of eviction, which occur after the sale has been contracted, do not affect the vendor; and, therefore, according to the facts stated, suit could be brought for the remainder of the price of the land.
(1) The vendor cannot be sued for either double or simple damages, on account of such offences as are usually punished by public prosecution, where the following words are inserted in a stipulation, namely: "The slave in question is free from liability for damage committed."
12. Scaevola, Opinions, Book II.
A certain individual having been appointed heir to half an estate sold all the land belonging to the same, and his co-heirs accepted the price. The land having been lost by eviction, I ask whether the coheirs will be liable to an action on purchase. I answer that if the coheirs were present, and did not dissent, each one of them was held to have sold his share.
13. Paulus, On Sabinus, Book V.
Proculus very justly held that where part of a tract of land is lost by eviction, an estimate of its quality should be made at the time when it was sold, and not when the purchaser was deprived of it;
14. Ulpianus, On the Edict, Book XVIII.
And that half of the amount of the price should not merely be taken into consideration.
15. Paulus, On Sabinus, Book V.
If, however, the land subsequently received any accession by way of alluvial deposit, the time when this took place should be taken into account.
(1) Where an usufruct is lost by eviction, an estimate should be made of the value of the crops.
(2) Where, however, a slave is lost to the purchaser by eviction, the extent to which the land is diminished in value on this account must be estimated in court.
16. Pomponius, On Sabinus, Book IX.
Where the property sold has been recovered by anyone having a better title, an action on purchase can be brought with reference to anything which has been added to it, just as where those things which are expressly stated to be accessories to land which is purchased must simply be made good by the vendor if they are lost by eviction.
(1) A stipulation for double damages is said to be operative at the time the property is restored to the claimant; or where he has judgment rendered against him for the value of the property; or when the possessor, having been sued by the purchaser, is released.
(2) Where a slave, on account of whom we have stipulated for the payment of double damages is lost by us because of his being a fugitive, or not being sound; the question arises can we, nevertheless, institute proceedings? Proculus says that it should be considered whether a difference does not exist where he was not mine at the time eviction took place, and where he had become mine at that time; for, in the case where he became my property, I immediately acquired an interest in the amount to which he was deteriorated, for this reason; and I at once acquired a right of action on the stipulation, which I cannot lose either by eviction, or by the death, manumission, or flight of the slave, or for any other similar reason. But if he had not become part of my property, I am none the poorer, because the slave is a fugitive; since he was not included in my estate. If, however, I stipulated that he was sound, and not accustomed to wander about, my interest only has reference to the present use, although it may be undetermined; just as if it was unknown how long I should have him, and whether anyone would recover him by eviction either from me, or from the person to whom I sold him and to whom I likewise gave a guarantee. The conclusion of Proculus is that I could only be sued on the stipulation after it had become operative, to the extent of my interest that the said slave should not be in the habit of running away.
17. Ulpianus, On Sabinus, Book XXIX.
No one doubts that a vendor who attempts to recover property which he himself has sold can be barred by an exception on the ground of fraud, even though he may have obtained ownership of it under another title; for he is dishonorably attempting to obtain property which has been disposed of by him. Moreover, the vendor should determine whether he prefers to retain the property by arresting the proceedings by means of an exception; or, if he has been deprived of the property, bring an action for double damages under the stipulation.
18. Paulus, On Sabinus, Book V.
Even though an exception may not have been pleaded, or if, having been successfully opposed, the purchaser is, nevertheless, evicted; the vendor can still be sued for double damages under the stipulation, for an action on purchase can be brought against him.
19. Ulpianus, On Sabinus, Book XXIX.
Where, however, no stipulation was entered into, we hold the same opinion with reference to an action on purchase.
(1) Where a freeman, who was serving Titius in good faith as a slave, is sold to me, and Titius makes him his heir, as if he was free, and he joins issue with me on this account; I will be entitled to hold him liable as the heir of Titius.
20. Pomponius, On Sabinus, Book X.
I encumbered a tract of land belonging to me, and afterwards sold it to you under the condition that you would not encumber it. If I should afterwards purchase the said land from you, and you execute a bond to me providing against eviction, it should be stated in the bond that the land was encumbered on my account, because if this is not done, and I bring an action against you on this ground I can be barred by an exception based on fraud.
21. Ulpianus, On Sabinus, Book XXIX.
Where a slave, who has been sold, dies before he is recovered by someone having a better title, the stipulation does not become operative, because no one recovered him, and what occurred is but the fate of mankind. Still, if any fraud existed, the purchaser can bring an action on that ground.
(1) Hence Julianus very properly lays down in the Forty-third Book that the stipulation for double damages becomes operative whenever the property is lost in such a way that the purchaser will not be entitled to it on account of the eviction itself.
(2) Therefore, he says where a controversy arises with reference to the ownership of a slave, and the purchaser appoints the vendor his agent, and the latter having been defeated, becomes liable for damages; the stipulation for double the amount does not become operative, because the vendor, who is at the same time an agent of the purchaser, has no right of action on mandate to enable him to recover the amount of the damages from the purchaser. Hence, since the purchaser has lost neither property nor money, there is no necessity for the stipulation to be enforced; although, if he had been defeated after issue had been joined, and had paid the damages assessed, it is held that the stipulation would become operative; and this Julianus himself stated in the same book, for the buyer is not considered to have in his possession a slave of whom he would have been deprived by his adversary if he had not paid the price. For the buyer acquires the right to the slave rather through the second purchase, that is to say, through the payment of his estimated value in court, than by the first transaction. Julianus also says in the same book, that if, where issue has been joined in a case, and the slave escapes through the negligence of the possessor, the latter should have judgment rendered against him; but he cannot immediately have recourse to the vendor, and must proceed under the stipulation for double damages, because, in the meantime, he was not entitled to the slave through having security against eviction, but on account of his flight. It is evident, he says, that when he obtained possession of the fugitive, the stipulation became operative. For if the slave had escaped without the fault of the possessor, he would then be released, if security was given, and the stipulation would not become operative, unless he should restore the slave after he had been caught. Therefore, where he tenders the amount of damages, this will be sufficient to enable him to hold the slave, but where he gives security, this cannot be done before he returns him.
22. Pomponius, On Plautius, Book I.
Where a guardian pays damages assessed on account of property purchased for his ward, not out of the money belonging to the latter, but out of his own property; a stipulation against eviction becomes operative in favor of the ward as against the vendor.
(1) Where a woman takes security against eviction from a tract of land which she purchased, and gives the same land by way of dowry, and someone afterwards deprives her husband of it by means of an action; the woman can immediately proceed against the surety on the ground of purchase, as having reduced the amount of her dowry, or rendered it worthless; provided the husband tendered to the claimant the value of the said property.
23. Ulpianus, On Sabinus, Book XXIX.
Where, however, the land is lost by eviction after the death of the woman, recourse must be had to the stipulation for double damages, because the husband can bring an action based on the promise of the dowry, against the heirs of the woman, and they themselves can proceed on the ground of the stipulation.
24. Africanus, Questions, Book VI.
Still, we cannot say that the result will be that the stipulation becomes operative if the woman is about to marry the true owner of the slave, and gives him as dowry, even though she will, in this instance, not have any dowry; since, indeed, while it is true that she has no right to the slave, yet it is not a fact that she has been deprived of him by a judicial proceeding; and she will, nevertheless, be entitled to an action on purchase against the vendor.
25. Ulpianus, On Sabinus, Book XXIX.
If you manumit a slave on whose account you have stipulated for double damages, you can recover nothing on account of the stipulation; because you are not deprived of anything to which you are entitled, since you yourself have voluntarily relinquished it.
26. Paulus, On Sabinus, Book V.
The purchaser will be entitled to an action on sale, on the ground that he did not make him his freedman, if the vendor was aware that he was selling a slave belonging to another. Where, however, the purchaser was compelled to manumit the slave on account of a trust, he will be entitled to an action on purchase.
27. Pomponius, On Sabinus, Book XI.
We adopt the rule that where exceptions are interposed against the purchaser, and they prevail, the vendor will not be liable; but where they have reference to the act of the vendor, the contrary rule applies. For it is certain that the purchaser will have no right to an action either on purchase, or under the stipulation for double, or even simple damages, where an exception based on his own act is successfully pleaded.
28. Ulpianus, On the Edict, Book LXXXI.
But if exceptions based on the acts of both vendor and purchaser are pleaded, it is a matter of importance to ascertain on account of which exception the judge will render his decision, and hence whether the stipulation is operative or not.
29. Pomponius, On Sabinus, Book XI.
If you should sell me property belonging to another, and I should repurchase it from the true owner; Celsus, the son, says that the opinion of Nerva is not correct; namely, that you, in bringing an action on sale, can recover the price from me; because I was, as it were, entitled to the property, since it is not agreeable to good faith that I should hold property under a title belonging to someone else.
(1) Where a stipulator for double damages instead of being the possessor becomes the claimant and loses his case, if he had been in possession of the property he could have retained it, but he cannot legally bring suit to recover it, as the promisor of double damages will be secure by operation of law, or he can undoubtedly protect himself by an exception on the ground of fraud. This, however, is the case only where possession was lost through the negligence, or with the consent of the stipulator for double damages.
(2) The vendor can be notified to appear at any time whatsoever when the matter is brought up in court, because a certain date is not fixed by this stipulation; provided, however, this is not done before the time that judgment is rendered.
30. The Same, On Sabinus, Book XIX.
Where he who stipulated with the purchaser that the slave was free from liability for theft or damages, and he from whom the slave stole the property becomes the heir of the purchaser, he will immediately be entitled to an action under the stipulation, just as if he himself had made good the amount of a theft committed against someone else.
31. Ulpianus, On Sabinus, Book XLII.
Where anyone makes a promise to the stipulating party "That the slave is sound, is not a thief, is not a violator of graves, etc.," the stipulation seems to some authorities to be void, because if the slave is of this character what is promised is impossible, and if he is not, the promise is without effect. I think that the following stipulation is more correct, namely: "That the slave is not a thief, is not a violator of graves, and is sound," and this is in conformity with law, for it contains what it is for the interest of the purchaser of the slave to have and not to have. But if a guarantee is added to any of these statements the stipulation will be still more valid; otherwise the stipulation introduced by the Aediles will be void, because no rational man would approve of it.
32. The Same, On Sabinus, Book XLVI.
For the reason that it is held that, where several matters are set forth in one stipulation, there are several stipulations; let us see whether this applies to one calling for double damages, for example, where anyone stipulates that the slave is not in the habit of running away, and is not a wanderer, and the other things which are mentioned in the Edict of the Curule Aediles; is there one stipulation, or several, in this instance? It is reasonable to hold that there are several.
(1) Hence what Julianus states in the Fifteenth Book of the Digest is correct. For he says that, where a purchaser brings an action for the depreciation in value of a slave because he was in the habit of running away, and then brings another on account of some disease with which he was afflicted; care must be taken to prevent the purchaser from obtaining a profit, and recovering damages twice for the same defect. Let us suppose that a slave was purchased for ten aurei, and that the buyer could have acquired him for at least two less, if he had only known that he was in the habit of running away; and, after recovering this sum because of said habit, he afterwards discovers that he is not sound, and that he could have purchased him for two aurei less, if he had been aware that he was diseased. He should, therefore, again recover two aurei, for if he had brought suit at the same time on both causes of action, he could have recovered four, since he could have purchased the slave who was not sound, and who was in the habit of running away, for only six aurei. In accordance to principle, he can proceed frequently under the stipulation, for he does not do so merely on account of one stipulation, but on account of several.
33. The Same, On Sabinus, Book LI.
If I purchase a slave and sell him, and afterwards have judgment rendered against me in favor of the purchaser, because I could not deliver the slave on account of eviction, the stipulation becomes operative.
34. Pomponius, On Sabinus, Book XXVII.
If you buy a female slave on condition that she shall not be prostituted, and if she is she shall become free, and you violate the condition of the sale, the slave will obtain her freedom, and you will be in the same position as if you had manumitted her, and therefore you will have no recourse against the vendor.
(1) Where proceedings have been instituted against me for the partition of property in a slave, and the latter is adjudged to my adversary for the reason that he proved that the said slave was held in common, I will be entitled to an action for double damages under the stipulation, because it makes no difference by what kind of a judgment eviction is obtained, if I have no right to the property.
(2) A stipulation for double damages does not merely include eviction where anyone claims and recovers the ownership of property, but also applies where proceedings are instituted under the Servian Action.
35. Paulus, On the Edict of the Curule Aediles, Book II.
Property is held to have been obtained by a creditor through eviction, where the expectation of holding it has been almost lost by the purchaser. Therefore, where eviction took place under the Servian Action, the stipulation in fact becomes operative; but as, where the money is paid by the debtor, the purchaser can hold the slave when the pledge is released, if the vendor is sued, he can avail himself of an exception on the ground of bad faith.
36. The Same, On the Edict, Book XXIX.
Where a ship or a house has been purchased, the stones of the foundation and the different planks are not understood to have been separately bought; and therefore the vendor will not be liable on the ground of eviction, as he would be in case a portion of the ship or of the house had been recovered through proof of a better title.
37. Ulpianus, On the Edict, Book XXXII.
Double the amount of the price must be promised by the vendor to the purchaser, unless some other arrangement is made, still, it is not necessary for him to give security, unless a special agreement is entered into to that effect, but the vendor will only be liable.
(1) Moreover, where he stated that double damages must be promised, it should be understood that this does not apply to every kind of transaction, but only to such where the articles sold are of great value; as, for instance, jewels, or precious ornaments, or silken garments, or anything else which is not sold at a low price. By the Curule Edict the vendor is also ordered to furnish security in the case of the sale of a slave.
(2) Where the buyer through mistake stipulates for simple instead of double damages, and he is deprived of the property by eviction, Neratius says that he can recover the deficiency in the stipulation by means of an action on purchase, provided the buyer does everything required by the stipulation. For if he does not do so, he can, only in an action on purchase, compel the vendor to promise him what was omitted in the stipulation in the first place.
38. The Same, Disputations, Book II.
Where a creditor has sold a pledge it may be considered whether, in case of eviction, the vendor can in a suit based on the sale, be compelled to assign the right of action which he has against the debtor. He is, however, entitled to a counter-action on pledge, and the better opinion is that he must make the assignment, for does it not seem more just to him that the purchaser should at least obtain this advantage, which he can do without causing any expense to the creditor?
39. Julianus, Digest, Book LVII.
A minor under twenty-five years of age sold a tract of land to Titius, and Titius sold it to Seius. The minor alleged that he had been overreached in the sale, and obtained a judicial inquiry, not only against Titius, but against Seius as well. Seius asked the Praetor to grant him an equitable action on the stipulation, against Titius, on account of the eviction. I thought it should be granted, and gave it as my opinion that Seius only demanded what was proper, for if the land should be taken away from him by a decision of the Praetor, it would be but just for restitution to be given him in case of eviction by the same Praetor.
(1) If your slave should buy another, and then sell him to Titius, after promising double his value in case of eviction, and you also should stipulate with the vendor of the slave, and Titius should claim the slave, and having brought suit is defeated on the ground that your slave could not transfer property in another slave without your consent, Titius would be entitled to the Publician Action, and on this account a stipulation for double damages would not become operative as far as he was concerned. Wherefore, if you bring suit under the stipulation, you can be barred by an exception, on the ground of bad faith, interposed by your vendor. The case would be different, however, if the said slave purchased another, and, after stipulating for double damages, sold him; for if the purchaser was deprived of him by eviction, the owner will be entitled to an action against the vendor to recover the entire sum, but he will only have a right of action against the purchaser to the extent of the peculium. Moreover, the purchaser should notify the slave and not his master, of the eviction, for where he is deprived of the slave through a better title, he can lawfully bring an action on the peculium. If, however, the slave should die, then his master must be notified.
(2) If you purchase two-thirds of a tract of land from me, and one-third from Titius, and then someone claims half of the land from you, if the half which is claimed from you is included in the two-thirds which you have received from me, Titius will not be liable. Where, however, the claim is for the third which Titius has sold you, and the sixth is included in the two-thirds which you have received from me, Titius will be liable to you for a third, and I for a sixth, in case of eviction.
(3) A father, aware of his responsibility, sold his son whom he had under his control to a purchaser who was ignorant of the fact, and the question arose whether he was liable in case of eviction. The answer was where anyone knowingly or ignorantly sells a freeman as a slave, he is liable in case of eviction. Hence the father who sold his son as a slave is liable on the ground of eviction.
(4) Where a party sells and delivers a slave who is to become free under some condition, and does not state that this is the case, he will be liable in case of eviction, without reference to lapse of time.
(5) Where anyone sells and delivers a slave, and states that the usufruct in him belongs to Seius, while, in fact, it belongs to Sempronius, and Sempronius claims the usufruct; he will be liable just as if in delivering the property he had stated that he was not liable to Seius on account of the usufruct, and if the usufruct actually should belong to Seius, but was bequeathed in such a way that when it ceased to belong to him, it would become the property of Sempronius, and Sempronius should sue for it, he will be liable; but if Seius should bring the action he could legally escape responsibility.
40. The Same, Digest, Book LVIII.
Where a party who has taken security from me against eviction bequeaths the land to me as heir, the sureties will be immediately released, because even though he to whom it was bequeathed has to a certain extent been evicted, still, no action against the sureties will lie.
41. Paulus, On the Edict of the Curule Aediles, Book II.
Where I sold a slave and promised double his value to the purchaser in case of eviction, and he had already bound himself to me by the same stipulation; and I afterwards become his heir, and the slave is lost through a superior title, the stipulation in no respect becomes operative. I am not held to have been deprived of him by eviction, since I sold him, nor was he evicted from the party to whom I made the guarantee, since I could, with very little propriety, be said to be liable to pay myself double damages.
(1) Again, if the purchaser should become the heir of the owner of the slave, as the slave cannot be evicted from him, nor can he be held to evict him from himself, the stipulation for double the amount of his value will not become operative. Therefore, in these cases an action on sale should be brought.
(2) Where anyone purchases a tract of land, and takes security against eviction, and sells the said land to a purchaser who becomes his heir; or, on the other hand, the purchaser becomes the heir of the vendor, in case the land is lost by eviction, the question arises whether suit can be brought against the sureties. I think that, in either case, the sureties will be liable, since when a debtor becomes the heir of his creditor, a kind of an account is opened between the heir and the estate, and the estate is understood to have become larger for the debtor, since the money which was owing to the estate has been paid and the property of the heir is diminished to that extent. On the other hand, when a creditor becomes the heir of his debtor, the assets of the estate are held to be diminished, just as if the estate itself had paid the creditor. Therefore, whether he who had taken security against eviction himself made the sale to the purchaser, or whether the latter becomes the heir of the vendor, the sureties will be liable; and if the estates of the vendor and the purchaser should pass into the hands of the same person, he can bring an action against the sureties.
42. Paulus, On the Edict, Book LIII.
Where a female slave, who is pregnant, is sold and delivered, and her offspring is evicted, the vendor cannot be sued on the ground of eviction because the offspring was sold.
43. Julianus, Digest, Book LVIII.
The purchaser of a cow, whose calf born after the sale was evicted, cannot bring an action for double damages under the stipulation, because neither the property itself, nor the usufruct in the same, was evicted; for where we say that a calf is the fruit of the cow, we mean, not the right, but the thing itself, just as we rightly designate grain and wine as the fruit of land, since it is settled that these things are not properly called usufruct.
44. Alfenus, Epitomes of the Digest by Paulus, Book II.
It is held that a boat is no part of a ship and has no connection with it, for a boat is itself a little vessel; but everything which is attached to a ship, as, for instance, the rudder, the mast, the yards and the sails, are, as it were, the members of the ship.
45. The Same, Epitomes of the Digest by Paulus, Book IV.
Where a person sold and delivered a tract of land containing a hundred jugera, he showed a tract of much greater extent to the purchaser, if the latter should, in consequence, be evicted from a part of the land, the vendor will be obliged to make good the amount in proportion to the quality of the soil; even though the remaining portion may include a hundred jugera.
46. Africanus, Questions, Book VI.
You sold me a tract of land the usufruct of which belonged to Attius, but you did not mention that he was entitled to the usufruct. I sold the said tract to Maevius, after having reserved the usufruct. Attius was deprived of his civil rights, and it was held that the usufruct reverted to the property, for it could not vest in me at a time when it belonged to someone else. I could, however, bring suit against you, as vendor, on the ground of eviction, because it is just that I should be in the position in which I had a right to be, if the usufruct was then separated from the land.
(1) If you should grant me a right of way through the premises of another, it is held that you are liable in case of eviction; for wherever a right of way is granted through property belonging to the party who gives it, or whether it is granted through the land of another, he assumes liability for eviction.
(2) If I should sell you Stichus, and state that he is to be free on a certain condition, and that his manumission was dependent on the arrival of a ship from Asia, while the condition really was that if Titius should become consul he should be manumitted; the question arises if the ship should first come from Asia, and Titius should afterwards become consul, and the ownership of the slave should be lost through his obtaining his freedom; would I be liable on the ground of eviction? The answer was that I would not be liable, because the purchaser was guilty of bad faith, as the condition was fulfilled before he lost the property by eviction.
(3) Moreover, if I stated that a slave would be free after two years, while, in fact, he ought to become free at the end of a year, and after the lapse of two years he obtains his freedom; or if I should say that he was entitled to his freedom on the payment of five aurei, while, in reality, he had been ordered to pay ten, and, the ten having been paid, he gains his freedom; the better opinion is that in these instances I will not be liable.
47. The Same, Questions, Book VIII.
If I purchase two slaves from you, each for five aurei, and one of them is evicted, there is no doubt that I can lawfully proceed against you in an action of purchase, on the ground of eviction, even though the remaining slave is worth ten aurei; nor does it make any difference whether I purchase them separately, or both at once.
48. Neratius, Parchments, Book VI.
Where a tract of land is bought as being absolutely unincumbered, and the purchaser obtains anything from the vendor on account of some servitude to which the land was subject, and afterwards the entire tract is evicted, the vendor should refund the amount remaining from the double damages, on account of said eviction. For, if we do not observe this rule, the vendor can recover more than double the sum paid for the land, in case of eviction; in the first place, on account of certain servitudes, and afterwards on the ground of ownership.
49. Gaius, On the Provincial Edict, Book VII.
Where an usufruct is demanded from the purchaser, he ought to notify the vendor of it; just as he should do from whom a portion of the property is sought to be recovered.
50. Ulpianus, On the Edict, Book XXV.
Where pledges are sold by officers of the Praetor, in consequence of extraordinary judgments, no one has ever said that an action should be granted against them on the ground of eviction. If, however, they fraudulently permitted the property to be sold for an insignificant sum, then an action will be granted against them in favor of the owner of the property, on the ground of fraud.
51. The Same, On the Edict, Book LXXX.
Where the purchaser of property loses his case through the ignorance or mistake of the judge, we deny that the vendor shall suffer the loss, as what difference does it make whether the property was lost through the baseness or folly of the judge? For the vendor should not suffer the injury done to the purchaser.
(1) If Titius should sell Stichus, who was to be free after his death, and Stichus obtains his freedom in consequence, will a stipulation made with reference to eviction be valid? Julianus says that the stipulation becomes operative, and even if the purchaser was unable in this instance to notify Titius of the eviction, he can still notify his heir.
(2) Where anyone sells a tract of land, and the vendor himself is buried there by his heir, with the consent of the purchaser, an action on eviction cannot be brought; for under these circumstances the purchaser will lose the property.
(3) It is not strange, however, that, where a slave is evicted, the heir should be liable on account of the eviction, although the deceased may not have been called to account in this way; for, in some instances, a greater obligation will arise either against or in favor of the heir than would have affected the deceased; as, for example, where a slave was appointed heir after the death of the purchaser, and entered upon the estate by order of the heir of the latter, for he must surrender the estate in an action on purchase, although a praetorian action could only have been brought against the deceased in order to compel the slave to be delivered.
(4) Where several parties are liable to me for the entire amount in case of eviction, and then, after eviction has taken place, I proceed against one of them, Labeo says that, if I sue the others, I should be barred by an exception.
52. The Same, On the Edict, Book LXXXI.
It must be remembered that where a stipulation for double damages has been entered into, it makes no difference whether it can become operative on account of the sale, or because of any other transaction.
53. Paulus, On the Edict, Book LXXVII.
If any portion of land which has been transferred should be evicted, and each jugerum of the same has been sold for a certain price, then whatever has been evicted should be made good, not with reference to its quality, but in proportion to the amount for which it was sold, even if the parts which have been evicted are better than the remainder.
(1) If when the purchaser could have notified the vendor, he did not do so, and he should be defeated in court because he did not obtain information which he required, he will be held to have been guilty of bad faith on this account, and he cannot proceed under the stipulation.
54. Gaius, On the Provincial Edict, Book XXVII.
Where anyone sells property belonging to another after title by prescription or usucaption has been acquired through lapse of time, he ceases to be liable to the purchaser for eviction.
(1) If an heir should sell a slave who was ordered to be free under the condition of paying a certain sum of money, and he states that the amount mentioned in the condition is greater than he was directed to pay, he will be liable to an action on purchase, provided the condition is such that it would have passed to the purchaser, that is to say, if the slave was directed to pay the heir; for if he was directed to pay anyone else, even though he may have stated the amount of money correctly, still, if he did not notify the purchaser that he was directed to make payment to another, he will be liable on the ground of eviction.
55. Ulpianus, On the Edict of the Curule Aediles, Book II.
Where judgment was rendered against a purchaser because he failed to appear, the stipulation does not become operative, and he is held to have been defeated rather on account of his absence, than because he had a bad case. But what if he against whom judgment was rendered was not present at the trial, but another party was present and conducted his case? What shall we decide? For example, where issue has been joined with a ward who was granted authority by his guardian, but the ward being absent, the guardian conducted the suit, and judgment was rendered against him; why should we not in this instance hold that the stipulation was operative, for it is evident that the case was tried? It is sufficient if the case was tried by the party who had the right to do so.
(1) The vendor should be notified if he is present, but if he is absent, or if, being present, he does something to prevent his being notified, the stipulation will become operative.
56. Paulus, On the Edict of the Curule Aediles, Book II.
Where it was stated to the vendor that he must bind himself to pay either simple, triple, or quadruple damages, he can be sued in an action on purchase without reference to lapse of time; for he who pays double damages is not compelled to give security, as is generally supposed, but the mere promise is sufficient, unless something else should be agreed upon.
(1) If I submit a question to arbitration, and an award is rendered against me, an action on the ground of eviction should not be granted me against the vendor, for I have not acted from necessity.
(2) Where a slave is sold under a stipulation for double damages, if he should be evicted, an addition with reference to the eviction of a share of said slave will be necessary, for a slave cannot be held to be evicted where only a share in him is involved.
(3) If the purchaser was able to acquire title by usucaption and does not do so, he is considered to have done this through his own fault, and hence, if the slave is evicted, the vendor will not be liable.
(4) If notice is given to the agent of the promisor (and the latter is present at the time), and has bound himself with reference to eviction, and is not ignorant of the fact, the promisor will still be liable.
(5) He also will be liable who took measures to avoid being notified.
(6) Where, however, the purchaser was not able to ascertain the whereabouts of the vendor, although the latter did nothing to conceal himself, the stipulation will, nevertheless, become operative.
(7) Trebatius says that it has been established as equitable that, in case of a stipulation for double damages, a ward can be notified without the authority of his guardian, if the latter does not appear.
57. Gaius, On the Edict of the Curule Aediles, Book II.
A purchaser is held to have a right to possession of the property where the party who deprived him of the same by eviction dies without leaving a successor, before the property is taken away or removed, provided it does not belong to the Treasury, or is not liable to be sold by private creditors; for then the purchaser would not be entitled to any action under the stipulation, because he has a right to hold the property.
(1) Since this is the case, let us see whether it must also be held that an action does not arise on account of the stipulation, where the property was donated or bequeathed to the purchaser by the party who defeated him. This is certainly the case where he donated or bequeathed the property before he removed it; otherwise, when the stipulation has once become operative it cannot be annulled.
58. Javolenus, On Plautius, Book I.
An heir delivered a slave who was not expressly bequeathed, and gave a guarantee against fraud and the slave was afterwards evicted. The legatee could bring an action on the will against the heir, even though the latter was ignorant that the slave was the property of another.
59. Pomponius, On Plautius, Book II.
Where property which I purchased from Titius is bequeathed by me, and the legatee is sued by the owner of the same, he cannot notify my vendor of the eviction, unless the rights of action should be assigned to him, or where he has the property secured by hypothecation.
60. Javolenus, On Plautius, Book II.
Where it is not stated at the time of the sale to what extent the vendor should be liable in case of eviction, he will not be liable on this ground for more than simple damages, and for the amount of the interest of the purchaser dependent upon the nature of the action of sale.
61. Marcellus, Digest, Book VIII.
Where I purchased something from you, and sold it to Titius, and you deliver it to Titius with my consent, it is settled that you will be liable to me in case of eviction, just as if I had received the property and had delivered it myself.
62. Celsus, Digest, Book XXVII.
If I should sell you any property which is in your possession, it is settled that I will be liable on the ground of eviction, for the reason that it is considered the same as delivered.
(1) Where several heirs are left by a party who sold me property, the obligation with reference to eviction applies to all of them and all of them should be notified, and all ought to defend the suit. If they purposely do not appear in court, or one of them appears for all in the case, all of them will be successful, or will be defeated on account of the effect of the notice, and the absence above mentioned, and I can legally proceed against the others, because they were defeated on the ground of eviction.
(2) If you should sell me a tract of land with the reservation of the usufruct in the same, and the said usufruct belonged to Titius, to whom it had been left during his lifetime, and I am ignorant of the fact, and Titius should forfeit his civil rights, but afterwards having recovered them, should bring suit claiming that he was entitled to the right of the use and enjoyment of the property, an action under the stipulation, on the ground of eviction, will lie in my favor against you; although if what you stated to me at the time of the sale were true, I could very properly deny that Titius was entitled to the use and enjoyment of said property.
63. Modestinus, Digest, Book V.
Herennius Modestinus was of the opinion that the purchaser, in bringing an action on sale, would not be barred because notice of the eviction had not been served upon him, if the necessity for notifying him had been released by the agreement.
(1) Gaia Seia purchased a tract of land from Lucius Titius, and proceedings having been instituted against her in the name of the Treasury, she had recourse to the vendor, and eviction having taken place, she was deprived of the land which was adjudged to the Treasury, the vendor being present at the time. The question arises, as the purchaser did not appeal, whether she can sue the vendor? Herennius Modestinus answered that if the land belonged to another when it was sold, or if it was hypothecated at the time it was evicted, there is no reason why the purchaser should not be entitled to an action against the vendor.
(2) Herennius Modestinus gave it as his opinion that if the purchaser appealed, and lost a good case through prescription by his own fault, he cannot have recourse to the vendor.
64. Papinianus, Questions, Book VII.
A river swept away two hundred jugera from a tract of land which contained a thousand when it was transferred. If two hundred jugera of the undivided remainder should afterwards be evicted, the stipulation for double damages will apply to the fifth, and not to the fourth part of said land; for the loss of what was swept away must be borne by the purchaser, and not by the vendor. Where the entire tract which was diminished by the river is evicted, the obligation providing for eviction will not be lessened by law, any more than if a tract of land or a slave should become depreciated in value through neglect; as, on the other hand, the amount for which the vendor is liable, in case of eviction, will not be increased if the property should have been improved.
(1) Where the amount of land which was transferred remains unimpaired, and two hundred jugera are added to the same by alluvion, and afterwards a fifth part of the entire undivided tract is evicted, the fifth part alone must be made good by the vendor; just as would be the case if two hundred jugera of the thousand which had been delivered were evicted, because the vendor does not guarantee any loss due to alluvial deposit.
(2) Where two hundred jugera were lost out of a thousand which have been conveyed, and afterwards two hundred more were added by alluvium to another part of the tract, and then an undivided fifth part of the entire tract should be evicted; the question arose for what proportion will the vendor be liable. I stated that, according to what has been previously laid down, the vendor will not be liable either for the fifth part, or the fourth part of the thousand jugera, on the ground of eviction; but will only be liable if merely a hundred and sixty out of the eight hundred jugera should be evicted, for the remaining forty which have been taken away from the entire tract should be understood to belong to the addition to the land, pro rata.
(3) Again, where a certain part of a tract of land, which is separate, is evicted, although a certain number of jugera were conveyed, still, the amount evicted must be made good, not in proportion to the quantity of the land, but with reference to its quality.
(4) Where a party who owned a half interest in an undivided jugerum of land, sold and delivered it, he did not, according to the opinion of the authorities, convey the entire ownership, but only the undivided half of the same; just as if he had transferred a certain tract of land or a field in this way.
65. The Same, Questions, Book VIII.
Certain heirs sold property belonging to the estate, which had been pledged, and bound themselves to the extent of their respective shares in case of eviction. One of them released the pledge so far as his share was concerned, and the creditor acquired the property by eviction; the question then arose whether suit could be brought against both heirs. This was held to be the case, on account of the indivisible nature of the pledge, and there did not seem to be any remedy which could be applied, in order that, by interposing an exception on the ground of fraud, the rights of action might be assigned to the heir who paid the money to the creditor; because it could be asserted that both the parties had become liable for the entire indebtedness, but they would be entitled to an action for partition of the estate on this account. For what difference does it make if one of heirs should entirely release the pledge, or whether he should only do so with reference to his share, since the negligence of one heir should not be injurious to his co-heir?
66. The Same, Questions, Book XXVIII.
If the vendor should notify the purchaser to institute proceedings under the Publician Action, or under the action which has been framed with reference to land subject to tax, and the purchaser has neglected to do this, his bad faith will only injure himself, and the stipulation will not become operative. This rule does not apply to the Servian Action, for although it is a real action, still, it deprives the party of the bare possession, and after the money has been paid to the vendor it will be disposed of; wherefore, the result is that the purchaser cannot bring it in his own name.
(1) Where anyone who is absent on public business brings suit to recover a tract of land, the possessor can avail himself of an equitable action in case of eviction. This principle also applies where a party who has been deprived of his property by a soldier brings suit, for the same equity demands that the action for restitution, in case of eviction, should be granted to the purchaser.
(2) If the second purchaser of a slave should appoint the vendor, who was himself the first purchaser, his attorney to conduct the case, and the slave was not given up, and a decision was rendered against him; whatever the said attorney may have paid on the judgment, just as if he was acting in his own behalf, cannot be recovered under the stipulation, but, for the reason that the loss resulting from eviction must be personally borne by the purchaser, who could recover nothing in an action on mandate, he can legally bring an action on sale for the recovery of the amount of damages assessed by the court.
(3) Where partition has been effected among co-heirs and the agent of one who is absent appears for him, and the principal of the latter ratifies his act; the same action will be granted against the principal, in case the land is evicted, which would have been granted against him who transacted his business while he was absent, and the plaintiff can recover the amount of his interest, that is to say, the amount by which the property was diminished or increased, based upon what it was worth at the time the partition was made, according as the land was rendered more or less valuable.
67. The Same, Opinions, Book X.
After the eviction of a slave whom the real owner took away from the purchaser, the vendor cannot properly make a defence by afterwards offering the same slave to avoid indemnifying the purchaser for his interest.
68. The Same, Opinions, Book XI.
Where a pledge is sold under the condition that the creditor will not be liable for anything in case of eviction, even though the purchaser should not pay the price, but gives security to the vendor; if eviction takes place, the purchaser will not be entitled to an exception to avoid paying the price of the property.
(1) Where a creditor has preferred to take a claim owned by the debtor by way of substitution for the money due, and the pledges taken by the former creditor are evicted; he will be entitled to no action against the debtor whom he released.
69. Scaevola, Questions, Book II.
Where the vendor reserves the question of freedom in the sale of a slave, he will not be liable on the ground of eviction, if at the time that the slave was delivered he should become free, or should obtain his liberty when a condition prescribed by will is fulfilled.
(1) Where a vendor, in delivering a slave, states that he is to be free on a certain condition, it is understood that only the kind of freedom is referred to which can result from the fulfillment of a condition already prescribed by a will, and therefore if freedom was conferred at once by the will, and the vendor says that the slave will be liberated under a condition, he will be liable in case of eviction.
(2) On the other hand, where anyone sells a slave who has the prospect of freedom, and states the condition under which he will be entitled to be free, and in doing so causes his condition to be considered worse, because he would not be held to have excepted every condition under which the slave would be free, but only that which he indicated; as, for instance, if anyone should say that the slave was ordered to pay ten aurei to become free, and he should obtain his liberty after the lapse of a year, because his freedom had been granted in the following terms: "Let Stichus be free after a year," the vendor will be liable in case of eviction.
(3) But what if a slave whom the vendor had declared would be free on the payment of twenty aurei had been, in fact, ordered to pay ten; would the vendor be considered to have told a falsehood with reference to the condition? It is true that he made a false statement with reference to the condition, and therefore certain jurists have held that, in this instance also, the stipulation would become operative in case of eviction. The authority of Servius, however, prevailed, who thought that under these circumstances an action on purchase would lie; because it was his opinion that he who stated that the slave had been ordered to pay twenty aurei had excepted the condition which depended upon the payment.
(4) A slave was ordered to be free after his accounts had been rendered; the heir sold and delivered him, and stated that he had been directed to pay a hundred aurei for his freedom. If nothing remained which the slave was obliged to pay when he rendered his accounts, he therefore became free as soon as the estate was entered upon, and liability for eviction was contracted for the reason that a man who was free was sold as one whose liberty was dependent on a condition. If the slave was a defaulter to the amount of a hundred aurei, it may be held that the heir did not tell a falsehood; and as the slave was ordered to render his accounts, it is understood that he was directed to make good the amount of money collected which remained unpaid. The result of this is, that, if he was in default for less than a hundred aurei, for example, only fifty, so that he would obtain his freedom when he paid this sum, the purchaser will be entitled to an action on sale to recover the remaining fifty aurei.
(5) Where anyone, at the time of the sale, states indefinitely that a slave will be conditionally free, but conceals the condition of his freedom, he will be liable to an action on sale if the purchaser is not aware of the fact; for, in this instance, it is settled that he who says that a slave has a prospect of freedom, and does not mention any condition, will indeed not be liable on the ground of eviction, if the condition is fulfilled, and the slave obtains his freedom; but he will be liable to an action on sale provided he concealed the condition which he knew had been prescribed; just as where a party sells a tract of land, and being aware that a certain servitude was due from it, stated indefinitely, "that all rights of way of every description would continue to be enjoyed by those entitled to them," is properly held to have released himself from liability for eviction, but, because he deceived the purchaser, he will be liable to an action on sale.
(6) Where the amount stated to be included in a tract of land which is sold falls short, a part of the price is deducted in proportion to the value of all the jugera which the land was alleged to contain.
70. Paulus, Questions, Book V.
Where property is evicted an action on purchase will not only lie for the recovery of the price, but also for the amount of the interest of the buyer. Hence, if the property has become less valuable, the loss must be sustained by the buyer.
71. The Same, Questions, Book XVI.
A father gave a tract of land to his daughter by way of dowry. This having been evicted, a doubt arises (and not without reason) as to whether an action on purchase will lie, or one for double damages based on the stipulation; just as if the father himself had suffered loss. For as the dowry belongs to the woman, it cannot be said to be the property of the father, nor can she be compelled, during the continuation of the marriage, to share with her brothers the dowry which is derived from him. Let us see, however, whether it can not be said with greater probability that under these circumstances the stipulation becomes operative; for it is to the interest of the father that his daughter should be endowed, and if she remains under his control, he may have the expectation of sometime recovering the dowry. But if she has been emancipated, it can hardly be maintained that the stipulation immediately becomes operative, because in one instance the dowry may revert to him. Therefore, can he bring an action against the vendor, since, if his daughter should die during marriage, he will be able to recover the dowry in case the land should not be evicted? Or, in this case, has the father an interest in having his daughter endowed, so that he can at once bring suit against the promisor? This opinion is the better one, as paternal affection is involved in the matter.
72. Callistratus, Questions, Book II.
Where several tracts of land are sold and expressly and specifically described in one and the same instrument of sale, each of these is not held to be a part of any other, but all the tracts are included in a single purchase. And, just as if anyone should sell several slaves by a single bill of sale, the action for eviction will include each head of said slaves individually; and just as also where a single purchase is made of several other articles, and only one bill of sale is drawn up, there are, however, as many actions for eviction as there are different kinds of property included in the purchase; so, in the case stated, the purchaser certainly will not be prohibited from bringing suit against the vendor if one of said tracts is evicted, because the transaction included several pieces of land conveyed by one instrument of sale.
73. Paulus, Opinions, Book VII.
Seia gave, by way of dowry, the Maevian and Seian estates, together with others. Her husband, Titius, during the life of Seia, kept possession of said tracts without any dispute arising, but after the death of Seia, Sempronia, who was her heir, raised a question as to the ownership of the land. I ask, as Sempronia herself was the heir of Seia, whether she could legally make such a claim? Paulus answered that she could do so in her own right, but could not, as the heir of Seia, claim the property in question; but if the land was evicted, the heir of Seia could sue Sempronia, or she could be barred by an exception on the ground of bad faith.
74. Hermogenianus, Epitomes of Law, Book II.
If it should be agreed that more or less than the price should be paid, in case of eviction, the parties must abide by this agreement.
(1) If, by order of court, a pledge taken to secure the execution of a judgment is sold, and it is afterwards evicted, an action on purchase will be granted against the defendant who was released by payment of the price, not for the amount of the interest of the buyer, but for the price alone and the interest on the same to be paid out of the profits, provided the buyer was not required to refund this money to him who obtained the property by eviction.
(2) Where a claim is formally made, the vendor can be sued, not for the recovery of the purchase-money, but to force him to defend the action.
(3) Where anyone sells a claim without a guarantee, he can only be compelled to show that it exists, and not that anything can be collected on it, but he will be responsible for fraud.
75. Venuleius, Stipulations, Book XVI.
With reference to rural servitudes, where they tacitly follow the land, and are recovered by a third party, Quintus Mucius and Sabinus hold that the vendor cannot be held liable for eviction, for no one is liable on this ground in cases where there is a tacit accession to property; unless the land is conveyed as absolutely and entirely unincumbered, for then it should be warranted to be free from all servitudes. If, however, the purchaser demands a right of way or a driveway, the vendor cannot be held liable, unless he expressly stated that a right of way of some description was accessory to the property, for then he who made the statement will be liable. The opinion of Quintus Mucius, who stated that a party who conveys land as absolutely and entirely unincumbered warrants it to be free from every servitude, is correct; for other servitudes are not due unless it has been expressly stated by the vendor that they are accessories.
76. The Same, Stipulations, Book XVII.
you sell me property belonging to another, and I abandon the same,
it is settled that my power to act, that is to say, my right to bring
suit on account of eviction, is lost.
Marcellus says that if you sell a tract of land belonging to another, and afterwards, it having become yours, you bring suit against the purchaser for its recovery, you will very properly be barred by this exception.
(1) The same rule must be held to apply to the owner of the land, if he becomes the heir of the vendor.
(2) Where anyone sells property of mine under my direction, and I bring an action to recover the same, I will be barred by this exception; unless it is proved that I directed that the property should not be delivered before the purchase-money was paid.
(3) Celsus says if anyone should dispose of my property for a smaller sum than I directed it should be sold for, it is held not to be alienated, and if I bring suit to recover it, I cannot be barred by this exception, and this is correct.
(4) If a slave purchases merchandise with money belonging to his peculium, and his master orders him to become free by his will before he obtains the ownership of the property, and bequeaths to him his peculium, and the vendor brings suit to recover the merchandise from the slave; an exception in factum can be pleaded, on the ground that he was a slave at the time he made the contract.
(5) Where anyone purchases property which was not delivered to him, but of which he obtained possession without fraud, he will be entitled to an exception against the vendor, unless the latter should have good reason for bringing suit to recover the property; for even if he had delivered possession, and he had just cause of action for recovery, he could avail himself of a reply to the exception.
2. Pomponius, On Plautius, Book II.
If you purchase a tract of land from Titius, which in fact belonged to Sempronius, and after the price was paid he delivers it to you, and Titius then becomes the heir of Sempronius, and sells and delivers the same land to Maevius; Julianus says that it is more equitable, for you have the prior lien, because if Titius himself had attempted to recover the land from you, he would have been barred by an exception; and if Titius himself had held possession of it, you could have recourse to the Publician Action.
3. Hermogenianus, Epitomes of Law, Book VI.
The exception on the ground of property sold and delivered is available, not only by him to whom it was delivered, but also by his successors, as well as by a second purchaser, even if it was not delivered to him, for it is to the interest of the first purchaser that the second should not be deprived of the property by eviction.
(1) On the same principle, the successors of a vendor can be barred, whether they have succeeded to all his rights, or merely to that which has reference to the property involved.