[Translation edited by Alan Watson, The Digest of Justinian, Philadelphia, 1985. Translation amended by me.]
 

DIGEST OF JUSTINIAN

BOOK TWENTY-ONE

SECTION 1

THE EDICT OF THE AEDILE, RESCISSION, AND THE ACTION FOR DIMINUTION

ULPIAN, Curule Aediles' Edict, book 1: Labeo writes that the edict of the curule aediles concerns the sales of things immovable as much as of those movable or animate. 1. The aediles say: "Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a runaway, a loiterer on errands, or still subject to noxal liability; all these matters they must proclaim in due manner when the slaves are sold. If a slave be sold without compliance with this regulation or contrary to what has been said of or promised in respect of him at the time of his sale, it is for us to declare what is due in respect of him; we will grant to the purchaser and to all other interested patties an action for rescission in respect of the slave. The purchaser, however, will have to make good in such cases all of the following: any deterioration in the slave after the sale and purchase which is attributable to the purchaser himself, his household, or procurator; anything born of or acquired through the slave since the sale; and anything else that accedes to the slave consequent upon the sale or any profits which the purchaser acquires through him. Equally, there will be due to the vendor any accessories which he himself may have provided. Again, vendors must declare at the time of sale all that follows: any capital offense committed by the slave; any attempt which he has made upon his own life; and whether he has been sent into the arena to fight wild animals. On these grounds, also we will give the action. In addition, we will grant the action if it be alleged that a slave has been sold, with deliberate wrongful intent, in contravention of our provisions." 2. This edict was promulgated to check the wiles of vendors and to give relief to purchasers circumvented by their vendors. It must, though, be recognized that the vendor is still liable, even though he be unaware of the defects which the aediles require to be declared. There is nothing inequitable about this; the vendor could have made himself conversant with these matters; and in any case, it is no concern of the purchaser whether his deception derives from the ignorance or the sharp practice of his vendor. 3. It must, however, be known that these provisions do not apply to sales by the imperial treasury. 4. But if some civitas make a sale of anything, this edict is operative. 5. It applies also to sales of the property of a pupillus. 6. If a defect in or disease of the slave be perceptible (and defects reveal themselves generally through symptoms), it may be said that the edict has no place; its concern is simply to ensure that a purchaser is not deceived. 7. It is to be noted that a definition of disease as an unnatural physical condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with health of body appears in Sabinus. Such condition may affect the whole body or only part thereof. (Tuberculosis and fever exemplify the former; blindness, even from birth, the latter.) Defect, he says, is very different from disease; stammering, for instance, is a defect rather than a disease. Personally, I am of opinion that the aediles employed a pleonastic expression to preclude any doubt. 8. So if there be any defect or disease which impairs the usefulness and serviceability of the slave, that is a ground for rescission; we must, however, bear in mind that a very minor flaw will not lead to his being held defective or diseased. Thus, a slight fever or an old quartan, which can now be ignored, or a trivial wound will entail no liability if it be not declared; such things can be treated as beneath notice. So let us give examples of slaves who are genuinely defective or diseased. 9. The question is raised in Vivian whether a slave who, from time to time, associates with religious fanatics and joins in their utterances is, nonetheless, to be regarded as healthy. Vivian says that he is; for he says that we should still regard as sane those with minor mental defects; otherwise, he proceeds, the position would be reached that on this sort of ground, we would deny that slaves are healthy without limit, for example, because he is frivolous, superstitious, quick-tempered, obstinate, or has some other flaw of mind. The undertaking relates to physical, not mental, health. Still, says Vivian, it does happen that a physical defect affects the mind also and makes the slave thereby defective; it can happen that he becomes mentally deranged by reason of a fever from which he suffers. What happens in such circumstances? If the mental defect be such that the vendor ought to reveal it or reserve it and, although he may know of it, he does not declare it, he will be liable to an action on the purchase. 10. Vivian says further that although, at some time in the past, a slave indulged in Bacchanalian revels around the shrines and uttered responses in consonance therewith, it is still the case that if he does it no longer, there is no defect in him and there will be no more liability in respect of him than if he once had a fever; but if he persist still in that bad habit, cavorting around the shrines and uttering virtually demented ravings, even though this be the consequence of excess and thus a defect, it is still a mental, not a physical, defect and so constitutes no ground for rescission, because the aediles pronounce in respect of physical defects; however, such facts give occasion for the action on purchase. 11. Vivian says the same in respect of slaves who are excessively timorous, greedy or avaricious, quick-tempered,

2 PAUL, Curule Aediles' Edict, book 1: prone to fits of depression,

3 GAIUS, Curule Aediles' Edict, book 1: impudent or wanton, hunchbacked, deformed, prone to the itch or covered with scales; the deaf and the dumb are also included.

4 ULPIAN, Curule Aediles' Edict, book 1: For all these defects, for which he says that rescission is not applicable, Vivian would give the action on purchase. 1. But if a physical affliction should have mental consequences, say that the slave raves in consequence of his fever or wanders through the city quarters, talking nonsense in the manner of the insane, there is, in such cases, a mental defect flowing from a physical one, and consequently, rescission will he possible. 2. Pomponius reports that there have been those who made reply that the edict does not apply to gamblers or wine bibbers, gluttons, impostors, liars, and the quarrelsome. 3. Pomponius, again, says that although a vendor is not required to produce a slave of full intellect, still if he sell one so silly or moronic that he is useless, there is a defect under the edict. Generally, the rule which we appear to observe is that the expression "defect and disease" applies only in respect of physical defects; a vendor is liable in respect of a defect of mind, only if he undertake liability for it; otherwise, not. Hence, the express reservation of the wandering or runaway slave; for their defects are of the mind, not physical. It is for this reason that there are those who say that animals prone to shy or kick are not to be accounted diseased; for such defects are of the mind, not the body. 4. All in all, if the defect be only one of the mind, there will be no rescission, unless the vendor has stated that such defect does not exist when, in fact, it does; an action on purchase, however, will lie, if the vendor, knowing of such defect of mind, should not reveal it. But if the defect be wholly physical or a combination of the physical and nonphysical, there is scope for rescission. 5. A rider has to be borne in mind, that is, that the general statement, disease, does not postulate a serious disease; as Pomponius says, this is no occasion for astonishment; for in the present context, there is no concern with what it is to which the specific disease is an obstacle. 6. Pomponius further says that not every disease gives ground for rescission -- take the case of a minor inflammation of the eyes, a slight toothache or earache or a sore scarcely worthy of notice; equally, not any trivial feverishness will come within the edict.

5 PAUL, Sabinus, book 11: And just as there is a distinction between those defects which the Greeks describe as a malignant form of disease and those which they categorize as ills, disease, or sickness, so there is a distinction between these faults and a disease whereby the usability of a slave is reduced.

6 ULPIAN, Curate Aediles' Edict, book 1: Pomponius correctly says that this edict concerns not only chronic diseases but also those which are temporary in effect. 1. Trebatius says that impetigo is not a disease, if the slave can use normally the affected limb, and I think Trebatius to hold the correct view. 2. To me it appears the better view that a eunuch is not diseased or defective, but healthy, just like one who, having one testicle, is also able to procreate.

7 PAUL, Sabinus, book 11: But if someone is a eunuch in such a way that he lacks a necessary part of his body,he is diseased.

8 ULPIAN, Curate Aediles' Edict, book 1: The question arises whether one whose tongue has been cut out is healthy. This problem is dealt with by Ofilius in respect of a horse. His opinion is in the negative.

9 ULPIAN, Sabinus, book 44: Sabinus says that a dumb slave is diseased; for it appears a disease to be without a voice; but one who speaks with difficulty or unclearly is not diseased; the slave whose speech is unintelligible, however, obviously is diseased to that extent.

10 ULPIAN, Curate Aediles' Edict, book 1: Ofilius, again, says that if the slave has lost a finger or suffered the laceration of some limb, even though the injury be healed, he will not be regarded as healthy, if his usefulness be diminished thereby. 1. 1 read Cato to have written that a slave who has had a finger or toe cut off is diseased; this is true, subject to the distinction already adumbrated. 2. Even when he has lost several, whether fingers or toes, if the loss does not impede his utility, there is no question of rescission; the issue is, therefore, not how many he has lost but, whatever their number, whether he can still be put to use. 3. It has been asked whether a slave suffering from short sight is healthy. I think him a case for rescission. 4. It is accepted that a dim-sighted person is diseased, that is, one who sees neither by day nor by night, who is so styled by the Greeks; there are those who think this to be the condition of one who, even when light be brought, sees nothing. 5. It has been asked whether those are healthy who stammer, lisp, are inarticulate, speak with difficulty, ramble, or rave. I think that they are.

11 PAUL, Sabinus, book 11: One who lacks a tooth is not diseased. Most men lack some tooth or other but are not thereby diseased. The more so, since we are born without teeth and are not treated as any the less healthy until we cut teeth; any other view would mean that no old man would be healthy.

12 ULPIAN, Curate Aediles' Edict, book 1: One with warts or with polypuses in the nose is diseased. 1. Pedius writes that a man who has one eye or one jaw bigger than the other is healthy, so long as he can use both properly; for he says that a discrepancy...