CHAPTER III. THE SLAVE AS RES (cont.). SALE OF SLAVES.

As Sale is, in practical life, the most frequent and important contract, it is not surprising that it figures largely in the texts in connexion with slaves, and is the subject, in that relation, of many special rules.

Slave-dealing was a recognised industry, carried on, apparently, by men of poor reputation¹. It seems to have been on account of their tendency to fraud, which they may have shared with dealers in cattle and horses, that the Edict of the Aediles was introduced, with which we shall shortly deal. As being men, slaves were not included in the term merces and thus slave-dealers were not mercatores, but venalidarii, their stock being called venalicii². Where slaves were so numerous, the traffic in them must have been a most important industry⁸. There is indeed plenty of evidence of this, and of the fact that it was often carried on on a very large scale⁴. Wallon⁵ gives a lively account of the usages of this trade, of the tricks of the dealers, of sale de catasta^e, and of other similar matters, too remotely connected with the law of the subject for mention here.

Such a business would require large capital, and thus it was frequently carried on by firms of partners. A text of Paul⁷, speaking of the practice of these firms, says that plerumque ita societatem coeunt ut quicquid agunt in commune videantur agere. The sense of this is not altogether clear. Though expressed as an understanding among them­selves, it seems from Paul’s further language to have been treated as affecting outsiders⁸. The contract was to be construed as if they had > 21. 1. 37; h. t. 44. 1.

² 14.4.1.1; 50.16.207 (in some literary texts the dealer is called ventdicius). The distinction is not important: the actio tributoria though it applied only to slaves who traded with merx peculiaris was extended to omnes negotiationes, including slave-dealing.

⁸ Blair, op. cit. 25, gives an account of the chief centres of the slave-trade.

⁴ 17. 2. 60. 1. ⁸ Wallon, Histoire de 1’esclavage, 2. 51 sqq.; Blair, op. dt. 144 sqq.

⁶ i.e. of slaves exposed for sale on a platform or in a sort of open cage so that they might be thoroughly examined by intending buyers.

⁷ 21. 1. 44.1. ⁸ ne cogeretur emptor cum multi» litigare, etc. all made it, the effect being that the actio ex empto would lie, on the general principles of joint obligation, only pro parte against each partner¹. It may be that, when introduced, this was of use to the buyer, for it may have antedated the actio ad exemplum institoriae, by which alone an ordinary mandator could be made directly liable². Apparently the plan did not work very well, for the Aediles provided that, so far as the Edictal actions were concerned, a claimant might proceed in solidum against any partner whose share was as great as that of any other partner⁸.

The rules as to periculum rei venditae were the same as in other cases⁴. There are, however, some cases of interitus rei which call for special treatment in connexion with slaves.

(a) Manumission of the slave. If he were a servus alienus, the manumission was presumably a discharge of the vendor, unless it was in some way due to him, in which case his actio ex vendito would be met by exceptio doli'“. If the slave were the property of the vendor, the vendee could recover his value, and anything he would have acquired if the slave had been delivered. Thus if he had been sold, cum peculio, acquisitions and accretions to that fund could be claimed by the buyer. Julian adds that the vendor would have to give security to hand over whatever he might acquire from the hereditas of the libertus.

¹ 21.1. 44. 1.

² This action seems to date only from the time of Papinian (17. 1.10. 5; 19. 1. 13. 25). See Accarias, Precis, § 637. It involved solidary liability, 14. 3. 13. 2.

⁸ 21.1. 44.1. If he sued ex empto, the inconvenience, which Paul notes, of divided actions still continued. Paul gives as the reason of the exceptional rule the habitual sharp practice of these dealers.

⁴ Death of slave after the contract was perfect released the vendor apart from culpa, but the price was due. But if the death resulted from his shewing less care than a bonus pater­familias would, the vendor was liable. 18. 5. 5. 2. See Moyle, Law of Sale, 107.

⁵ It may be that if the buyer did not know that the slave was a third person's this was enough to give him an exceptio doli.

⁶ 19. 1. 23. 7 Mackintosh, Law of Sale, ad h. I.

ch. in] Sale of Slaves: Interitus Rei 41

the value of the slave. It is not easy to think this excess was claim­able, but it may be that Julian is applying the rule that a vendor must hand over all acquisitions through what is sold.

(6) Noxal Surrender. This could ordinarily create no difficulty, for as we shall shortly see, the vendor was bound to warrant the slave not liable on any delict, and thus there was an obvious remedy¹. If, on the other hand, he had expressly excluded this warranty, he would be liable, if he had known of the fact, and intentionally concealed it, on account of the fraud. If he did not know of it, there could be no liability, except under the Edictal rules which will be considered shortly.

(c) Flight or Theft of the slave. This is not exactly interitus rei, but, as it prevents delivery, it is analogous thereto. The mere fact of his running away would be no breach of the warranty that he was not given to doing so; that refers to the time of the contract; this was later, and did not shew that he had ever fled before². But flight or theft of the man may be a breach of the duty of the vendor to keep him safely. Justinian tells us that, in such events, there is no liability in the vendor unless he has undertaken the duty of custodia till delivery³. This means, apparently, liability for all but damnum fatale, and thus does not render him liable if the man is seized by force, though he will have to cede his actions, as always when he is not liable⁴. Justinian applies this rule to all subjects of sale’.

It is a general rule of sale that, apart from agreement, the vendor must hand over, with the thing sold, all its accessories existing at the time of sale⁸. In relation to slaves it is only necessary to say that this would not include children already born since they are not accessories⁷. On the other hand though the peculium was an accessory⁸, it was said to be exceptum, and did not pass unless expressly agreed for; if the man took res peculiares with him, these could be recovered⁹.

Acquisitions after the sale are on a somewhat different position. The general rule was that a vendor might not enrich himself through the man after the sale, whether delivery was due or not¹⁰.

¹ Post, p. 56.

² 21. 1. 54, 58. 2; 21. 2. 3. But see Windscheid, Lehrbuch, § 389.

⁸ In. 3. 23. 3.

⁴ 19. 1. 31. pr.-, 18. 1. 35, 4; 47. 2. 14. pr.\ In. 3. 23. 3. Accarias, Precis, § 612.

⁵ Cp. 19. 1. 31. pr. We have seen (p. 11) that in earlier law the limits of the duty of custodia where the subject of the transaction was a slave were not necessarily the same as in other cases. On the general rules as to the liability of the vendor for custodia see Windscheid, op. cit. § 389; Lusignani, Custodia, pt. n.

⁶ 18. 1. 67. 7 3o. 62, 63. a

⁹ 18.1. 29; 21. 2. 3. If the peculium did pass accessories to it passed as of course, 19.-1.13.13.

« 28. 5. 38. 5; V. Fr. 15. “ P. 2. 17. 7.

42 Sale: A ccessions after the Contract is made [pt. i relative to property which goes with him¹. Anything the vendor has given him, since the sale, must go too, and legacies and inheritances which have fallen to him, irrespective of the question on whose account he was instituted’. If the peculium was sold with him, the buyer is entitled to all accessions to it^{[171] [172] [173] [174]. On these points the only restrictions to note are, that, though acquisitions ex operis pass, that which is acquired ex re venditoris does not, and that an agreement might be made, where delivery was deferred, that the buyer should have no right to fructus, etc., accruing in the interval*. If a sale was con­ditional, the occurrence of the condition had a retrospective effect in relation to these profits[175].}

Neratius tells us that the vendor must make good not only what he has received, but also what the buyer would have received through the man if he had been delivered^{[176] [177].}

A somewhat complex case is discussed by Julian, Marcian and Marcellus⁹. A slave, having been sold, was instituted by the buyer, equally with X. The buyer died before the slave was delivered. The vendor made the slave enter, and X also entered. This would vest in X half the inheritance, including half the vendee’s right to the slave and his acquisitions. The slave’s entry makes the vendor owner of half the inheritance, and he is still owner of the slave. What is to be the ultimate adjustment? The solution reached is stated by Marcellus. As the vendor is bound to hand over all that he would not have acquired if the slave had been delivered, he must hand over the whole. Julian, however, after observing that the vendor may not enrich himself through such a slave, had added that he need only hand over the proportion for which X was instituted, i.e. as Marcian says, half the slave and a quarter of the hereditas, this being what X could claim through the right to half the slave which he acquired as heir. But this view ignores the ch. m] Sale: Accessions after the Contract is made 43 fact that if the slave had been delivered, his institution would have been void, and all would have gone to X¹.

The rule that he acquires to his dominus (though the acquisitions will have to be handed over to the buyer) was applied rigidly in cases in which another rule would have seemed simpler. If the buyer receives the slave but it is agreed that he shall hold him only as conductor till the price is paid, the man acquires to his dominus in the interval².

As the vendor has to hand over all fructus, he is entitled to deduct expenses. Thus he may charge such costs of training as the vendee would be likely to have incurred, and the cost of medical treatment⁸. Ordinary cost of maintenance he may not charge unless the non-delivery is imputable to the buyer⁴.

Africanus discusses a case of debt from the slave to the master⁵. The slave has stolen something from the master. If he is not yet delivered and the peculium is included in the sale, the vendor may retain the value of the stolen thing, and, if the peculium has been handed over, he may recover it as paid in excess, the peculium having been ipso facto reduced by that amount. If there was no peculium, or it did not pass, there would be no debt, for that was essential to all debt between dominus and slave⁸. If the theft were after the slave was delivered, then, on general principle, the buyer would be liable to con­dictio furtiva only in so far as he or the peculium had received the thing’.

Except as to eviction and the Aedilician actions⁸, the texts do not lay down many principles, as to liability under the contract, which are peculiar to slaves, though there are illustrations of ordinary principle. Thus we know that the vendor must take care of the thing, and the question is raised whether he is liable if, after the sale, he orders the man to do some dangerous work by which he is injured. Labeo says that he is, if it is a thing he was not in the habit of doing. Paul points out that the vendor’s previous treatment may have been negligent, and that the question is, whether the direction was negligent or dolose⁸.

¹ The facts are insufficiently recorded, but the institution can hardly have been accompanied by a gift of liberty. The will may or may not have been made before the purchase. The difficulties are analogous to those in Jones v. Hensler, 19 Ch. D. 612.

² 18: 6. 17. It may be, though the text is not explicit, that such an agreement implied an understanding that the buyer was to have no right in these interim acquisitions.

⁸ Cp. 19. 1. 13. 18. We are told that, if the slave die without fault of the vendor, the buyer may be charged with cost of funeral.

⁴ 19.1. 88.1. In other cases he may be expected to set off this with the services he can still claim from the man. For though he must hand over fructus, it does not appear that he need charge himself with the value of services rendered to himself.

⁸ 19.1. 30. pr. ⁶ Post, Ch. xxix. ’ 19. 1. 30. pr.

⁸ The Edict of the Aediles may have contained a provision that on sale of a slave his dress passed, but not ornanienta. The chief text is 50.16.74, compared with 34.2.25.10. Lenel, Paling. 2.1177; Ed. Perp. §293,12 (Fr. Edit.). Bremer (Jurisp. Antehad. 2.546) thinks the rule connected with a corresponding rule in Jewish law. The Jews were great slave*dealers. There was a somewhat similar rule in sales of cattle, 21. 1. 38. pr. Lenel cites also 34. 2. 23, 24, 25. 9; 15. 1. 25. ⁹ 19. 1. 54. pr.

44 Sale: Warranty of Quality [pt. i

Apart from the Edict of the Aediles the vendor was not liable for defects unless he had warranted or was guilty of dolus’. Several texts illustrate this dolus. It was dolose to sell, knowing of a serious defect, of which the buyer was ignorant, e.g. that the man was fur aut noanus^{[178] [179]. The text adds that the buyer can sue at once, though before he could sue on the stipulatio duplae actual damage must have occurred[180]. It was dolose to say recklessly of a man, who was in fact a thief, that he was worthy of entire confidence[181] [182] [183]. Liability is, in the text, based on the view that one who recklessly makes statements which are not true, is in much the same moral position as one who is silent as to defects of which he is aware. It would seem simpler to treat it as a binding dictum’'.}

Where a vendor sold a mulier knowing that the buyer supposed the woman a virgo, this was dolus, a rule severer than that of English law^[184].

One case is somewhat remarkable. Paul tells us that if a woman, whose partus is sold, is over 50, or is sterile, the vendor is liable ex empto if the buyer did not know that this was so^[185]. Whether this is sale of a spes or of a res sperata the agreement is void, but it is not easy to see why the vendor should be under any liability unless he knew the facts, which is not stated, and is certainly not a matter of course. It may be that the price has been paid, and all that is meant is that he can recover this. For that, a condictio indebiti would suffice⁸, and there is some contradiction in allowing ex empto when there is no contract. But this was allowed at least as early as Julian’s time, in some other cases⁹. Even if the vendor knew the facts, there was no sale¹⁹, so that in this case, too, the contradiction remains. But here the buyer could no doubt recover any expenses incurred.

It is clear on the evidence of many texts that at least some of the duties created by the Aediles, and therefore, strictly, enforceable only by the Aedilician actions, were nevertheless brought within the action ex empto in the classical law¹¹. The course of ideas seems to have been that these edicts imposed certain duties and it was the duty of a vendor to act in good faith. It was not good faith to fail in duties which were ch. m] Edictal Obligations in the Actio ex Empto 45 notorious, and therefore, the action ex empto being bonae fidei, neglect of these duties was actionable therein¹. When this step was taken is uncertain. It is at least as old as Neratius², and may be older, since a corresponding extension of the Aedilician actions to sales other than those contemplated in the Edict is held by some writers to be as old as Labeo⁸. The one extension does not imply the other: it is likely that the one with which we are concerned was the later, that it was a gradual development, and that it was never complete. It probably never went so far as to give redhibition in the actio ex empto, wherever the actio redhibitoria would have lain⁴. It is sometimes held, on logical grounds, that in these extended cases, the claim was subject to the short term of limitation prescribed by the Aediles⁵. In support of this view it may be noted that the vendor’s liability, ex empto, for defects of which he was ignorant, was applied only to defects covered by the Edict⁶. But there is no direct evidence that the time-limit was the same.

The texts give us many cases of sales of slaves in which the Edictal liabilities are made the basis of the actio ex empto'¹. Neratius tells us that a vendor, even in good faith, is liable ex empto to deliver a slave who is not fugitivus*, which here means fugax, not one who is at this moment a runaway from his master. This merely expresses the fact that this was one of the warranties required by the Aediles. In another text, of Ulpian, it is said that if one sells, in ignorance, a slave who is, in fact, given to stealing or running away, one is not liable ex empto for his stealing propensity, but is for his tendency to flight. The reason given by the text is that fugitivum habere non licet et quasi evictionis nomine tenetur dominos*. The reason is unintelligible, and is in fact omitted by the Basilica¹⁰. There is nothing like eviction. It is as lawful to have a slave who is in the habit of running away as any other slave. There is a confusion between a fugax and an actual run­away. The reasoning given is probably Tribonian’s: the true explanation is that the Aediles gave a remedy where a slave sold was fugacious¹¹, but not, apart from special agreement, where he was addicted to theft¹².

The actio ex empto may be left with the remark that in such actions the plaintiff recovered quanti interest, and that in the case of slaves this might be damages of a kind not possible in other cases¹³.

¹ 21. 1. 31. 20. For references to the extensive literature hereon, see Windscheid, op. cit. § 893, n. 1. ² 19. 1. 11. 7, 8.

⁸ Moyle, op. cit. 194. Also at p. 213, as to a text which seems to carry this extension back to Labeo.

⁴ Moyle, loc. cit. ⁵ Windscheid, op. cit. § 393, n. 12.

⁶ 21. 1. 1. 10 Jin. is explained by h. I. 9. 7 Post, p. 63.

⁸ 19. 1. 11. 7. In the next text he tells us that the vendor must give him furtis noxiisque solutus, being bound ex empto, even in the sale of a servus alienus, to give security covering this. The point is the same: the Aediles required a warranty.

⁹ 19. 1. 13. 1. ¹⁰ Bas. 19. 8.13. 1. n Post, p. 55.

¹² 21. 1. 1. 1, 17. 1, 17. 17, 52. See as to measure of damages, in these cases, post, p. 63.

¹⁸ Thus it would cover costs and damages in a noxal action and the value of what he took with him and of others he induced to run away, 19.1.11. 12,13. 2.

In connexion with eviction we shall consider in detail only those points which are of special importance in relation to slaves. The duty of a vendor, to give the buyer effective possession, implies a duty to compensate him, if the title proves defective. Before and after the development of the consensual contract of sale, it was the custom to guarantee this by a stipulation for twice the value (stipulatio duplae). This stipulation was from early times compulsory in all sales of im­portance, and, in the classical law, it was implied where it had been omitted¹. The eviction contemplated in this liability is deprivation of the thing by one with a better title. The buyer is bound to give the vendor notice of the adverse claim, and to take all reasonable steps in defence of his right. Failure to satisfy these requirements will deprive him of his claim against the vendor.

In sale of slaves the stipulatio duplae in case of eviction was expressly required by the Edict of the Aediles^{[186] [187] [188] [189] [190]. This did not prevent its exclusion by agreement : it might be excluded altogether’, or made for less or more than duplum*, or limited to the acts of the vendor and those claiming under him’. A question of some difficulty arose where the eviction penalty was wholly or partly excluded. The liability to compensate, enforced by the actio ex empto, existed apart from the stipu­lation, e.g. in minor[191] sales. It is not clear whether it was excluded by the existence of the stipulatio duplae : but there seems no reason why they should not be alternatives[192]. If there was an agreement excluding the eviction penalty, or limiting it to eviction by the vendor, and eviction by a third person took place, there was disagreement whether anything could be claimed by the action ex emptos. Julian appeared to think the price must be refunded : the convention by which a man bound himself to pay, though he got nothing, being inconsistent with a bonae fidei transaction. But it is easy to see cases in which a buyer might take the risk, and Julian answers his own objection by citing the case of an emptio spei. Accordingly Ulpian decides that the actio ex empto will not lie, clearly the fairer view. For the risk was reckoned in the price, and there is no good faith in charging the vendor indirectly with what has been expressly excluded.}

ch. m] Eviction: Stipulatio Duplae 47

The two actions differ in nature and effect in many ways¹. Here it is enough to note a few points. The action on the stipulation could be brought only when eviction had actually occurred^[193], while the actio ex empto might anticipate the interference⁸. The actio on the stipulation is for a certain sum, usually twice the price : that ex empto is for quanti interest. This will include partus born of an ancilla, a hereditas left to the slave and other accessions^{[194] [195] [196] [197] [198]. Moreover if the thing alters in value, its value at the time of the eviction is the measure of the inter esse, whether it be more or less than the price8.}

We have seen that, to give a basis for the action on stipulation, an actual eviction must have occurred. This means, in general, that some person has substantiated a claim to take the slave from the buyer, and he has in some way satisfied the claim so that he is deprived of what he bargained for^[199]. The usual case is that of adverse ownership, but, where the subject was a slave, eviction might occur in special ways. Thus, if a statuliber were sold without notice of his status, the occurrence of the condition would be an eviction^[200]. So if the slave sold were one whom the vendor was under a fideicommissum to free⁸. So, if he proved to have been free at the time of the sale^[201]. It might be supposed that a noxal claim was an eviction, and there is no doubt that it gave rise to an actio ex empto to recover the minimum sum by which the liability could be discharged^{[202] [203]. The text adds that the same is true of the action ex stipulaiu. This cannot refer to the stipulatio relative to eviction, since that was for a certain sum. The stipulation referred to is the action on the warranty against certain defects, of which noxal liability was one, which, as we shall shortly see, a buyer could exact. It seems therefore that, as the noxal claim did not necessarily lead to eviction, but involved damages of uncertain amount", it was the practice to proceed ex empto, or under the warranty last mentioned. This could not be done in the case of crime, for the Edict as to noxae did not cover crimes[204]. A somewhat similar state of things arose where the property}

was taken by a pledge creditor, by an actio Serviana. Here, however, recovery was held to be eviction¹. The difference is remarkable, since the creditor’s action does not affect the buyer’s ownership, and indeed we are told that, if the debtor pays the debt, since the buyer is now entitled to have the slave again, his action on eviction against his vendor, (the debtor,) will be met by an exceptio doli². Thus the difference of treatment seems to be due to the fact that there is no liability on the buyer to pay, as there is in noxal cases. No doubt he could do so if he wished, and recover ex empto, up to the value of the slave.

It was essential to any claim that the buyer had taken proper steps to defend his title. Thus the right was lost if he had colluded with the claimant⁸. Moreover if the condemnatio was due to iniuria iudicis there was no claim against the vendor⁴. On the other hand, if there was no doubt about the justice of the claim, it does not appear to have been necessary to incur costs, in fighting the matter through: the buyer would not lose his right by admitting the plaintiff’s claim⁵. Failure to recover the man from one who had taken him was equivalent to deprival⁸. If, however, he paid for the man, not under pressure of litigation, but buying him from the real owner, he has not been evicted and is thrown back on his remedy ex empto⁷. So also, if after the sale he acquires an independent title to the slave, there has technically been no eviction, and the only remedy is ex empto*.

It has been pointed out that these requirements lead to odd results⁹. To claim, as a slave, a man you know to be free, is an iniuria, but if it be done to preserve an eviction claim this is a defence¹⁰. And while a promise to give a man who is in fact free is null", a promise to com­pensate for eviction on sale of one is good¹⁹. The reason seems to be that the rule of nullity, being iuris dvilis, was not extended to collateral transactions connected with valid contracts. The sale being valid, the validity of the dependent obligation necessarily followed¹³. If, while

> 21. 2. 35.....

²Ibid. The right of action is not destroyed: semel commissa stipulatio resolvi non potest.

³ Vat. Fr. 8. Or neglected the defence (21. 2. 27) or failed to notify the vendor or his successors of the claim (21.2. 51.1, 53.1) a reasonable time before the condemnation (21.1.29.2). This text shews that the stipulation contained a proviso for notice. But as this is inconsistent with the rule that not to give notice was dolus and thus barred the claim (29. 2. 53.1) it may be that the proviso was inserted in that particular case. For detail as to notice, Moyle, Sale, 117 sqq. Lenel thinks the Edict expressly required notice (Ed. Perp. § 296, Fr. Edit.). It applied equally in ex empto, C. 8. 44. 8, 20, 29.

⁴Vat. Fr. 8,10; 21.2. 51. jw., etc.

⁵ 19.1.11.12. See however 47.10.12. Conversely the fact of his retaining the slave did not bar his claim if he paid damages in lieu of delivery 21. 2.16.1 *, h. t. 21. 2.

« 21. 2. 16.1. ⁷ 21. 2.29. pr.

⁶ 19. 1.13.15; 21.1. 41. 1. If the vendor himself acquire the title and sue on it, he can presumably be met by an exceptio doli, or the buyer can let judgment go and sue for duplum 21.2. 17.

9 Accarias, Precis, § 607 bis. ¹⁰ 47.10.12.

n In. 3. 19. 2. 12 Ante, p. 47, n. 9.

¹³ Different reason, Accarias, loc. cit.

ch. in] Eviction: Death of Slave: Ma numission by buyer 49 the claim against the buyer is pending, the slave runs away through his culpa, he will be condemned¹, but Ulpian quotes Julian to the effect that he cannot yet claim on eviction, for he lost the slave through his own fault. When he gets the fugitive back he can proceed, for it is now true that he has lost the value of the slave through defect of title.

Apart from agreement the liability for eviction is subject to no limit of time². There are, however, certain circumstances which end it.

(Đ°) After the buyer has usucapted the slave there can be no further liability for eviction so far as outstanding ownership is concerned’, and if he has failed so to acquire the slave, when he could have done so, it is his own fault, and he has no claim against the vendor¹. But, as we have seen, this was no protection against liability for eviction on other grounds, nor could it occur where the slave was furtivus.

(б) Death of the slave before eviction. Here Ulpian, following Julian, says that, as the loss is not due to the defect of title, the liability on the stipulatio duplae does not arise⁵. In fact there has been no eviction, and as no loss resulted from the defect of title, there could be no actio ex empto either. This appears from the concluding words of the text, which give actio doli if the vendor was in bad faith, implying that there was no other action⁶. There is damage in the sense in which this action requires it. The actio ex empto is to put the buyer so far as possible where he would be if the vendor had kept his contract. The actio doli puts him where he would be if the dolose act had not occurred: i.e., he can recover the price. If the death occurs after litis contestatio in an action against the buyer, the action will proceed, and if the judgment is against the buyer, he will have the eviction claim⁷.

(c) Manumission after the sale by the buyer. He cannot now claim on the stipulation, since he has abandoned his right to the slave, and so did not lose him by the eviction. So far the law is clear⁸. And the same result follows if the slave became free by any act of the buyer’s, whether it was intended to have that effect or not⁹. There was dis­agreement as to whether the actio ex empto was still available. Paul quotes Ulpian’s view that it was lost, but himself adopts that of Julian,

¹ 6.1. 45. If the flight was not through his culpa and he was absolved on giving security, the right to claim would not arise till he had recovered the man and given him or damages instead, 21. 2. 21. 3.

² C. 8. 44. 21. If he has undertaken to promise duplum, he can be required to do so at any time, by the actio ex empto. So if the man sold was a statuliber, the liability for eviction arises however long it is before the condition is satisfied, 21. 2. 56; 21. 2. 39. 4.

⁸ 21. 2. 54. pr. * 21. 2. 56. 3.

⁸ 21. 2. 21; C. 8. 44. 26. ⁶ 4. 3. 1. 1.

⁷ 6.1. 16. pr. If the claim were one of liberty, Justinian allowed the buyer to call on the vendor to shew that Hie dead man was a slave: if he did not the eviction claim arose, C. 7.17. 2 3

’ ⁸ 19.1. 43; 21. 2. 25; 21. 1. 47..pr.

⁸ e.g. where the sale was with a condition against prostitution {post, p. 70) and the buyer prostituted her, 21. 2. 34. We have seen that eviction did not always turn on defect of title.

i.e. that it was still available^[205]. It may be that, as Paul elsewhere says, the remedy is still extant, but only so far as to enable the buyer to recover his interesse in the man as a libertus². This he has in no way abandoned. It is hardly necessary to say that sale of the man does not destroy the right. If the original buyer is evicted after he has sold, he is liable for non-delivery, which is enough to entitle him’. On the other hand, abandonment of the man (pro derelicto habere) is abandonment of the right⁴.

We have now to consider cases in which the eviction is not depriva­tion of ownership. If all that was sold was a right less than ownership, and this was evicted, the foregoing rules apply’. More detail is necessary where what is evicted is not the buyer’s whole right. Several cases must be considered.

(i) Where a pledge creditor claims the slave, by actio Serviana (or presumably, by actio quasi Serviana). Here, as we have already seen, there was an eviction, and the action on the stipulation was available⁶.

(ii) Where an outstanding usufruct is claimed from the buyer. Here, too, the texts make it clear that it was an ordinary case of eviction, giving the actio ex stipulatione duplae, with the ordinary requirement of notice⁷. Here, as in many parts of the law, usufruct and pledge are placed on the same level. The conditions are indeed much the same: though the deprival may not be permanent, there is for the time being a breach of the duty, habere frui licere praestare, out of which these rules as to eviction grew. The case of outstanding Usus is not discussed: on principle the decision should be the same⁸. It must be added that the amount recovered would be arrived at by considering what proportion of the total value would be represented by the usufruct, and doubling that proportion of the price’.

(iii) Where, of several slaves sold, one is evicted. No difficulty arises: each is regarded as the subject of a separate stipulation¹⁰. We do not hear how the price is fixed if they had been sold at a lump price^[206].

(iv) Where an undivided part is evicted. It seems clear on the texts that where a divided part of a piece of land sold was evicted the actio ex stipulatione duplae lay¹⁸. This rule looks rational, but it is not a necessary result of principle, and it may be a late development. All the texts which explicitly lay it down are from Paul, Ulpian, and Papinian¹. It is possible on the language of a text from Callistratus that there may still have been doubts².

In the case of an undivided part, there is difficulty. Ulpian appears to put all and either kind of part on the same level’. Papinian gives the actio duplae on eviction of an undivided part⁴. Pomponius’ says what comes to the same thing. A buys a slave. X brings iudicium, communi dividundo, and the slave, proving common, is adjudicated to him. Pomponius gives A the actio duplae. It is clear that he has lost only a half; for he must have received an equivalent for the other half. Julian says that a liability for eviction arises, but it is possible that this refers only to actio ex empto“, though in other parts of the text he is speaking of the actio duplae. On the other hand Paul expressly says that as eviction of an undivided part is not eviction of the man, it is necessary to provide expressly for eviction of the part⁷. It may be noticed that in all the mancipations of slaves by way of sale, of which a record has come down to us⁸, the stipulation says partemve. It is clear that the case differs from that of a divided part in that there is no necessary loss of actual possession, and it is possible to harmonise the texts, by assuming that in all the cases in which actio duplae is here mentioned, the clause partemve was inserted. This may be regarded as partly borne out by the fact, otherwise surprising, that we have much earlier authority than in the other case: i.e. Pomponius, and perhaps Julian. But it must be admitted that nothing in the form of the texts suggests this. On the whole it seems more likely that the jurists were not agreed, and that their disagreement has been allowed to survive into the Digest.

(v) Accessories, fruits and partus. The rule seems to be that so far as they are expressly mentioned the ordinary liability arises. But, if they are not mentioned, there is no liability. Thus where a slave was sold cum peculio, and a vicarius was evicted, the buyer had no claim, since if he did not belong to the man he was not covered by the words cum peculio¹¹. As to acquisitions and partus of the slave coming into existence apud emptorem, it is clear that the stipulatio can give no right if the slave is evicted, for no more than duplum pretium can be recovered by it in any case. But the question may arise where, for instance, the slave is dead pr., 64. 3. Materials of a house in existence form an apparent exception: we are told that as they are not sold eviction of them is not partis evictio (21. 2. 36). This view of the house and the materials as distinct led to difficulty in other matters (In. 2.1.29 sq.). We are told elsewhere that ex empto is available (41. 3. 23. 1). This implies that they are sold and puts them on a level with those accessories that pass with a house (19. 1.13, 31.15).

1 21. 2.1,13,14,15, 53. pr., 64. H. t. 45 is from Alfenus, epitomised and noted by Paul.

221.2.72. ⁸ 21.2.1. that the actions did not arise

¹ The point of this may be that if there was dolus the damages were not limited as they may have been in the other case, bat all damage was recoverable. Bat even this adds nothing to the liability under the actio ex empto. Pothier, ad 21. 1.1.1; C. 4. 58. 1. Bat the limitation is doubtful, Post, p. 63. Karlowa (loc. cit.) thinks it refers to fraad on the Edict, post, p. 59.

² 21.1. 28. i.e. to compel him to promise and thus be liable ex stipulatu.

⁸ It survived into the Digest, 19. 1.11. 4; 21.1. 28; C. 4. 49.14. Some texts cited to shew this shew merely that sach stipulations were made—a different matter, 21. 2. 31, 32. Some refer to the stipulation on eviction, 21. 1. 31. 20. Bechmann, op. cit. 1. 404, thinks it is the compilers who supersede this system.

⁴ See however Accarias, op. cit. § 609 bis; Bechmann, op. cit. 1. 407.

⁵ 21.1.14. 9; 2.14. 31. He must conceal nothing. ⁸ Noct. Att. 7. 4.

⁷ 2. 14. 31; 21. 1. 14. 9. ⁸ 21. 1. 48. 8.

⁹ Bruns at pp. 207, 8 of his edition of the Syro-Roman Law-book.

¹⁰ 21. 1. 16, 17. 17. 11 21. 1. 54; C. 4. 58. 3. 12 21. 1. 1. 6; k. t. 14. 10.

¹⁸ Ibid.; h. t. 48. 4. The texts are not agreed as to whether even an express warranty was binding if the buyer knew the facts, 16. 1. 43. 1; 44. 4. 4. See Moyle, Sale, 197.

where the defect was not such as to affect the value of the slave^[CCXI]. On the other hand it was immaterial that the vendor had no knowledge of the defect², and thus the redhibitory actions do not necessarily exclude ex empto³.

We have now to consider the defects and other matters non- or mis­statement of which rendered the vendor liable to the Aedilician actions.

I. Morbus or Vitium in the slave. It is not necessary to go through the long list of diseases mentioned in the Digest, under this head: it will be enough to state the general principles and to discuss one or two disputed points. At first sight it might seem that morbus meant a case for the doctor, and vitium some permanent defect or deformity. But the actual nature of the distinction was unknown to the classical lawyers themselves. Aulus Gellius⁴ remarks that it was an old matter of dispute, and that Caelius Sabinus (who wrote on these Edicts) reported Labeo as holding that vitium was a wider term, including morbus, and that morbus meant any habitus corporis contra naturam, by which its efficiency was lessened, either affecting the whole body (e.g. fever), or a part (e.g. blindness or lameness). Later on he quotes similar language from Masurius Sabinus⁵. The remark which Gellius describes Caelius as quoting from Labeo is credited by Ulpian to Sabinus himself⁸. It seems, however, that Labeo must have been using the word vitium in a very general sense, not confined to the cases covered by the Edict, for the illustrations given of vitia, which are not morbi, are those which appear not to have been contemplated by the Edict⁷. Aulus Gellius⁸ gives another attempt to distinguish the meanings of the words. Some of the Veteres held, he says, that morbus was a dis­order that came and went, while vitium was a permanent defect. This is a close approximation to what is suggested above as the most obvious meaning of the words, but Gellius notes that it would upset Labeo’s view that blindness was a morbus. Ulpian remarks that it is useless to look for a distinction: the Aediles use the words side by side, and only in order to be perfectly comprehensive⁹. The texts do not usually distinguish : they say that a defect does or does not prevent a man from being sanus^w.

The ill must be such as to affect efficiency^[CCXII], and it must be serious, more than a trifling wound or a cold or toothache or a boil¹². On the

ch. m] Morbus and Vitium. Fugitivus, Erro 55 other hand it need not be permanent¹. Thus fevers and agues, gout or epilepsy are enough². A mere difficulty or hesitation in speech was not a redhibitory defect’, though incapacity to speak intelligibly was⁴. It is clear on these texts that the limits had been matter of dispute. Shortsightedness was another subject of dispute. A man who cannot see far is as sound, says Sabinus, as one who cannot run fast’. But some had held that it was always a redhibitory defect; others only if it was caused by disease⁶. Ulpian says that myops and luscitiosus might be redhibited⁷. No doubt it is a question of degree⁸. The defect must be physical⁹: mental and moral faults were not enough. Thus fanaticism, even amounting to permanent religious mania, and idle or lying habits were not enough¹⁹. This no doubt indicates the fact that the Edict only embodies the usual practice and that the word commonly employed, i.e. sanus, referred, in ordinary speech, only to bodily defects¹¹. It is due to this limitation that erro and fugitivus are specially mentioned¹². On the other hand, madness caused by bodily disease was redhibitory, as shewing a bodily vitium™. It should be added that some things might be vitia in a man which would not be in stock, and that defects not covered by the Edict might nevertheless give actio ex empto if the vendor knew, and was silent as to them¹⁴.

II. Fugitivus and Erro. The vendor must declare if the slave has either of these defects¹â€™. Fugitivus here means one who has run away at least once from his master¹⁶. What is involved in “running away” will be considered when we are discussing fugitivi in detail¹⁷: here we must note that the case is not one of an actual present fugitive, but of one who has shewn that he is fugax—inclined to run away. An erro is one who is given to wandering about without cause and loitering on errands¹⁸. The practice has a certain similarity to flight, and Labeo defines them as greater and less degrees of the same offence¹⁹. So,

121.1.6. ² 21.1.1. 7; h. t. 53.

’ Aul. Gell. op. cit. 4. 2. 2; D. 21. 1. 10. 5.

i 21. 1. 9. ’ Aul. Gell. op. cit. 4. 2. 15.

⁸ Aul. Gell. loc. cit. 11. 1 21.1. 10. 3, 4.

⁶ Labeo held sterility in a woman always a redhibitory defect. But the view of Trebatius (quoted by Ulpian from Caelius Sabinus) prevailed: it was redhibitory only if resulting from disease (Aul. Gell. 4. 2. 9,10; 21. 1.14.3). Servius held lack of a tooth redhibitory, but this was rejected, the reason being presumably that it is immaterial, though this is disguised under the odd proposition, that, if this were a defect, all babies and old men would be unsound. Labeo and Paid are responsible for this (Aul. Gell. 4. 2.12; 21.1.11). To be a castratus or a spado was a vitium (21.1. 6. 2, 7, 38. 7) though it might increase his value (9. 2. 2, 7. 28). See ante, p. 8.

⁹ Habitus corporis. ¹⁰ 21.1.1. 9—10; h. t. ĐŞĐ.рг.

¹¹ Pomponius suggests that an utterly useless imbecile might be redhibited. Ulpian rejects this, 21. 1. 4. 3. Cf. h. t. 43. 6. Post, p. 59.

21. 1. 4. 3.

¹⁸ 21. 1.1. 9, 4.1, 4. 4. In Aul. Gell. (4. 2. 15) Masurius Sabinus appears as holding that a furiosus is morbosus'. it is presumably this last form of insanity he has in mind.

¹⁴ 21.1. 38. 7; h. t. 4. pr. As to eunuch and castratus, Karlowa, B.B.G. 2.1301.

¹⁵ 21. 1.1.

¹⁸ 21. 1. 17, passim; h. t. 48. 4,54, 58. pr.; C. Th. 3. 4.1 (C. 4. 58. 5); C. 4. 58. 3; C. 4. 49.14. и Post, Ch. xii. ¹⁸ 21.1.17. 14. » Ibid.

56 Noxa non solutus. Express warranties [pt. i

Arrius Menander, speaking of military discipline, says that to be an erro is a levius delictum, while to be a fugitivus is a gravius¹. But there is something misleading in this: the attitude of mind is different’.

III. Noxa non solutus’. The vendor must declare if the slave is subject to any present liability for delict, i.e. not any delict that the man has ever committed, but only those as to which the liability is still outstanding^{[213] [214] [215] [216] [217]. As we have seen, the word noxa refers to private delicts sounding in damages, not to criminal offences[218].}

IV. Quod dictum promissumve cum veniret fuisset’. The vendor is bound, by liability to the Edictal actions, to make good any representa­tions made at the time of sale. The position of this rule in the Edict suggests that it is a somewhat later development; but it must be as old as Labeo^[219]. The difference between dictum and promissum is that the former is a purely unilateral declaration, while the latter is, or may be, an actionable contract, giving an actio ex stipulatu as well as the Edictal actions. The dictum need not be made at the moment of the sale: it will bind though it was made some days before, if it was substantially one transaction^[220]. The preceding text seems to contem­plate its being made after the sale.

Mere general words of commendation or “puffery” do not constitute binding dicta: it is therefore necessary to decide on the facts whether it really is a definite statement, intended to bi binding^[221]. Where it is binding it is to be construed reasonably and secundum quid. To say that a man is constans and gravis does not mean that he has the Con­stantia et gravitas of a philosopher^{[222] [223] [224]. The dictum might be the denial of bad qualities, or the affirmation of good". It might cover any sort of quality, and was obviously most useful in relation to mental and moral qualities1’. Many dicta are mentioned in the title, besides those already instanced[225]. In one text we have the curious warranty that he was not a body-snatcher, due no doubt to temporary and local condi­tions[226]. In some of the recorded cases of actual sales, we find a warranty}

ch. hi] Other defects 51

that the slave is not epileptic¹, though there is an independent warranty against disease. We know that the ancients hardly regarded this as a bodily disorder. We see from these notes that it was usual to stipulate even as to the defects covered by the Edict^{[227] [228]. In the sale of a girl of six, in a.d. 139, it is stipulated that she is furtis noxisque soluta, which looks as if it was “common form[229].”}

V. Si quod mancipium capitalem fraudem admiserit*. This is one of a group which appear almost as an afterthought in the Edict. They are probably a later addition, but they too must be as old as the Empire, since, as Ulpian tells us, fraus in the general sense of offence is an old use^[230]. There is little comment on this rule. Ulpian tells us that it involves dolus and wickedness and that, therefore, Pomponius says that the rule could not apply to furiosi and impuberes^{[231] [232] [233]. It may be re­membered that, under the Sc. Pisonianum, the price could be recovered on conviction[234]. The two remedies overlap, but while the remedy under the Senatusconsult was perpetual, that under the Edict was temporary. On the other hand the latter gave the better redress while it existed8.}

VI. Si mortis consciscendae causa quid fecerit. Ulpian gives some obvious illustrations, and suggests as the reason of the rule, the view that the man is a bad slave, who is likely to try on other men’s lives what he has attempted on his own^[235]. It seems hardly necessary to go so far to find a reason for not wanting to give money for a slave who was likely to kill himself^{[236] [237].}

VII. One who had been sent into the arena to fight with beasts¹¹. This does not seem to have been commented. The silence may mean only that the comment has been cut out, for masters had been long since forbidden to send their slaves into the arena, and condemnation ad bestias was obsolete^[238].

VIII. One sold as a novicius who was in fact a veterator^[239]. This case has already been considered¹⁴: here it is enough to say that the fact gave the Aedilician actions, and that this was in all probability laid down in a separate part of the Edict¹⁶.

58 Other defects. Nationality [pt. i

We pass now to a group of cases of which it cannot be said with certainty that they were mentioned in the Edict, or even that they gave the Edictal actions. It is said that it is aequissirnurn to declare the facts, and in reference to one of them the Edict is mentioned¹: it is commonly assumed that they were on the same footing as the others. They are:

IX. One who under existing law cannot be manumitted².

X. One who has either been sold previously, on the terms that he is to be kept in chains, or has been condemned to vincula by some competent authority³.

XI. One who has been sold ut eaportetur*.

All these are facts which shew that the slave is undesirable, but they do not exhaust the list of bad qualities, and the principle of selec­tion is not clear. It may be noted that they have the common quality that they involve more or less restriction on manumission owing to the fault of the man, and they may be all that is left in Justinian’s time of a rule requiring declaration where there was such a restriction due to his fault. If that is so, it is in all probability a juristic development. In Justinian’s law past vincula no longer restricted manumission⁶, but the survival of this rule is not surprising.

XII. Nationality. The vendor must state the nationality of the slave, on pain of liability to the Aedilician actions⁶. The reason assigned in the text is that nationality has a good deal to do with the desirability of slaves. There is plenty of evidence that this was so⁷: it was, in particular, presumptive evidence of their fitness or unfitness for certain employments⁸. The requirement is no doubt connected with the rule that it was necessary to insert in the professio of your fortune, required during the Empire for revenue purposes, the nationality of your slaves⁹. It is assumed by Lenel¹⁰ that the rule we are considering was expressly laid down in the Edict. But this is in no way proved: it may well have been a juristic development. In support of this view it may be remarked that this is the only one of the cases in which it was found necessary to assign reasons for the rule. In the other cases nothing is said as to reasons beyond the general proposition with which the whole discussion opens, that the Edict was for the protection of buyers¹¹.

¹ 21. 1. 48. 3. 2 Post, Ch. xxv; 21. 1. 17. 19.

⁸ 21. 1. 48. 3, 4. * Post, p. 69.

⁵ Post, Ch. xxv. « 21. 1. 31. 21. 1 Wallon, op. cit. 2. 61.

⁸ Marquardt, Vie Privee, 1. 200. Many slaves were captivi and the possibility of post­liminium might be important.

⁹ 50.15. 4. 5. In most of the recorded sales of slaves the nationality of the slave is stated. There is an exception in a.d. 139 (Bruns, op. cit. 288 sag., 325; Girard, Textes, 805 sqq?). The rules of professio were a gradual development, and may not have been fully developed at that time. It may be that at some date the nation had to be stated only in the case of barbari. Cf. C. Th. 13. 4. 4; 3.4.1.

¹⁰ Ed. Perp. § 93. It is not clear whether he thinks the same of those last discussed.

¹¹ 21. 1. 1. 2.

ch. m] Sale of Slave with other property 59

In the foregoing statement it has been assumed that the sale was of one or more slaves as individuals. But this was not necessarily the form of the transaction. The slave might be sold with something else: a hereditas, a fundus with its mancipia, a slave with his peculium which included vicarii. Here if the main thing is redhibitable, so is the slave, though he be in no way defective¹. But, for a defect in an accessory slave, the right of redhibition arises only if he was expressly mentioned, and not where he was included in a general expression such as pecu­lium or instrumentum (sold with a fundus)². So Ulpian, agreeing with Pomponius; and Gaius, in saying that if omnia mancipia are to go with a fundus they must be guaranteed⁸, means only that this amounts to express mention. It is by reason of this rule that the Aediles pro­vided that slaves might not be accessories to things of less value, lest a fraud be committed on the Edict⁴. Any thing however may accede to a man, e.g. the vicarius may be worth more than the principal slave⁵. Presumably where the right of redhibition did arise in respect of an accessory slave, it applied to him alone. It should be added that if a peculium was sold without a slave, similar rules applied as to slaves contained in it⁶.

The Edict applied to other transactions resembling sale, e.g. permu- tatio⁷, but not to donationes or locationes*. It did not apply to sales by the Fisc, by reason of privilege⁹. The text adds that it applied to sales of the property of persons under wardship¹⁰, the point being, perhaps, that it might be doubted whether the liabilities should be imposed on an owner who was incapax.

The actions given by the Edict are the actio redhibitoria, and the actio quanto minoris (otherwise called aestimatoria)¹¹, the former in­volving return of the slave, owing its name to that fact, and available for six months; the latter, (which lay on the same defects and was in no way limited to minor cases,) claiming damages and being available for a year¹². But if the slave were quite worthless, e.g. a hopeless imbecile, it was the duty of the index to order refund of the price and return of the man even in this case¹⁸. The actions are available, on the words of

^I 21. 1. 33. 1. ² h. I. pr. ⁸ 21. 1. 32. Existing defects to be mentioned.

⁴ 21. 1. 44. pr. It hardly seems necessary to appeal, as Pedins does, to dignitas hominum. At the time when this rule was laid down the Edict probably dealt only with slaves.

⁸ Ibid.

⁶ 21. 1. 33. pr. As to the case of sale of several slaves together, post, p. 67.

⁷ 21.1. 19. 5.

⁸ 21. 1. 62, 63. In the latter case apparently only because these transactions not being ordinarily carried out in open market had not come within the purview of the Aediles.

⁰ 21. 1. 1. 3, 4. It applied to sales by municipalities. ¹⁸ 21. 1. 1. 5.

^II For a hypothesis as to the early history of this action, Karlowa, R.R.G. 2. 1291 sag.

¹² 21. 1. 21; P. 2. 17. 5; 21. 1. 18. pr. On these points a somewhat different rule was in operation in Asia Minor in the fifth century. Bruns, Syro· Roman Law-book, 206.

¹⁸ 21. 1. 43. 6. The periods were utiles. According to one text the time runs from the sale, or in the case of express dicta, from any later time at which they were made, 21. 1. 19. 6, 20. But another corrects this so far as to make it run from the time at which the defect was or ought to have been discovered, 21.1. 55.

60 Principles of the Aedilician Actions [pt. i the Edict, to the heirs and all universal successors, and, though they are in a sense penal, they lie against the heirs¹. This is because they are purely contractual, (for they do not depend on any wrongdoing,) and for the same reason the action is de peculio if the vendor was a slave or person in potestas (the slave returned being reckoned in the peculium at his real value^{[240] [241] [242]).}

On the actio quanto minoris there is not much to be said. It is not actually mentioned in the Edict as cited by Ulpian^{[243] [244]. During the six months the buyer has his choice between the two actions; thereafter he is confined to quanto minoris, which leaves the contract standing, but entitles him to recover the difference between the price he paid, and what he would have given had he known the fact [245] [246]s[247]. As we have seen above, this might be the whole price, in which case the iudex would order return of the man. There is a separate action on each defect, and it can therefore be repeated, care being taken that the buyer does not profit, by getting compensation twice over for the same wrong. In like manner, if there were an express warranty, it was regarded as so many stipulations as there were defects’.}

It was for the buyer to prove the defect⁸. In such a matter the evidence of the slave himself, taken in the ordinary way, by torture, was admissible^[248], and if there were other evidence, even the slave’s declaration made without torture in the presence of credible persons, might be used in confirmation⁸. As the actio redhibitoria was for return of the man, it would be needed ordinarily only once. But it might fail, and it was permitted to insert a praescriptio limiting it to the particular vitium, so that it could be brought again on another’.

The action was not available so long as the contract was still condi­tional: the iudex could not set aside an obligation which did not yet exist. Indeed an action brought prematurely in this way was a nullity, and litis contestatio therein would in no way bar later action. Sometimes, even if the sale were pura, a condition of law might suspend the action. Thus if a slave in usufruct bought, no actio redhibitoria would lie, till it was known out of whose res the price would be paid, for in the meanwhile the dominium was in suspense^[249].

ch. in] Effect of the Actio Redhibitoria 61

The general effect of the action is to put an end to the transaction: the man is returned, and the price repaid, and thus it is spoken of in several texts as being a sort of restitutio in integrum on both sides¹. Both parties, it is said, are to be in the position in which they would have been had there been no sale^[250]. But this is subject to some limita­tions. It did not, in fact, make the sale as if it had never been, for it would not entitle the buyer to a noxal action for any theft done to him by the slave^{[251] [252], nor could a redhibited slave ever give evidence against the buyer[253]. And, as we shall see in discussing the results of the action, the vendor might often be a serious loser, and the buyer a gainer. Moreover the restitution so far as it went was only between the parties: if, for instance, the buyer redhibited merely to defraud creditors, the vendor was liable to them on account of the slave[254].}

In considering the working of the action it will be assumed, for the present, that there are one seller, one buyer and one slave, who is still in the possession of the buyer. The Edict expresses in outline the duties of the parties. It provides that the buyer must give back the slave and any acquisitions, accessions and products, and must account for any deteriorations caused by himself, his familia or procurator^[255]. The duties are further detailed in the commenting texts. He must be able to restore the man, and therefore if he has pledged, alienated, or created a usufruct in him, these rights must be released before the vendor can be made to refund^[256]. The duty to restore accessions covered all that went with him and all acquired since the transfer⁸, including what, by negligence, the buyer had failed to receive; in general any acquisition not ex re emptoris⁶. Thus he must give up any damages he may have received for theft of the man, but not for iniuria. The reason for this exception is that the action on ordinary iniuria to a slave depended on intent to insult the master, and accordingly the text suggests with doubt that even these must be restored in those cases of extreme insult in which this intent was not necessary^[257].

62 Actio Redhibitoria. Obligations of the parties [pt. i

The deterioration for which he is to account must, by the Edict, be after delivery¹. It may be physical or moral’. Familia, for this pur­pose, includes slaves, bona fide servientes and children’, and no doubt, in classical times, persons in mancipio. Procurator means either a person with general authority or with authority in the matter in connexion with which the harm was done. It includes tutor, curator and any per­son having administration^{[258] [259] [260]. It is immaterial to the liability whether it were dolo or only c[261] [262] ulpa[263]. It might conceivably be something which would have happened equally if the sale had not occurred. In this case he was equally liable for his own act, as he would have been if there had been no sale, but if it were by a procurator he need only cede his actions, and if it were his slave he could surrender him noxally’. But if the man acquired the bad habit merely by imitation of the buyer’s ill-conducted slaves, this was not so far done by them that there could be any question of noxal surrender[264]. He may have to give security for certain purposes, e.g. against liability on any charge he may have created, or on any wrong committed on his iussum, and, generally, against dolus3, and for the handing over of anything receivable in future, e.g. damages in any pending action about the slave, whether he receive them, or, dolo or culpa, fail to do so*.}

The vendor must hand over to the buyer the price and any acces­sions to it, and all the properly incurred expenses of the purchase, though not any money wantonly spent; an instance of what may be recovered being overdue taxes which the buyer had to pay^[265]. If the price is not yet paid he must release the buyer and his sureties. What is meant by accessions to the price is not clear, but they certainly cover interest, which he must in fairness pay, since he is recovering the fructus with the slave¹¹. It may be conjectured that the word originally covered cases in which the price or part of it was not in money.

Other expenses are on rather a different footing. There is a right to receive all damages and expenses, such as the value of things the slave, now redhibited, had made away with, or taken with him on running away¹², expenses of medical treatment¹â€™, cost of training¹⁴, damages paid in a noxal action, and the value of any thing he had ch. m] Actio Redhibitoria. Obligations of the parties 63

stolen from the buyer¹, but not the cost of maintenance, since he had the man’s services in return for that’. But all this last group of claims the vendor can evade by refusing the slave and leaving him with the buyer by a sort of noxal surrender^{[266] [267] [268] [269] [270] [271], being then liable only for the price and those things which are reckoned with it. If however he knew of the defect at the time of sale he is in any case liable in solidum*.}

The Aediles require the buyer to do his part first^[272]: the render being made in iudicio and under the supervision of the iudex, who will issue no condemnation till it is done’. But since it might happen that the vendor could not fulfil his part, and the buyer would be left with a useless actio iudicati, the iudex might authorise the buyer to give security for his part of the render without actually paying it^[273].

The general effect of the actio redhibitoria. being to undo the transaction as far as possible, no prominence is given to the distinction between a vendor who knows and one who is ignorant⁸. In the actio quanto minoris the buyer recovers the difference between price and value at the time of sale^[274]. It seems however that in classical law it was usual to enforce these Edictal duties in the actio ex empto, and the rule is expressed in the texts that the vendor if ignorant was liable only for the difference in value, while, if he knew, he was liable for the interesse. This is clearly Julian’s view. In one text^[275] there is no warranty, so that an innocent vendor would have been under no liability, apart from the Edict, and the defects mentioned are morbus and vitiiMn. In another there certainly was a warranty: tenetur ut aurum quod vendidit praestet¹¹. In another text Pomponius¹â€™ makes the warranting vendor liable for the whole interesse whether he knew or not. And in the text last above cited¹¹, he is quoted as laying down the same rule with Labeo and Trebatius in opposition to Julian. The texts may be harmonised on the view that where the duty is entirely edictal, Julian’s distinction applies. Where there was a warranty there was a liability ex empto for the interesse, apart from the Edict. In support of this it may be noted that in Marcian’s text dealing with warranty, Julian’s remark has rather the air of being out of place. In a text of Paul¹³, the innocent vendor is made liable for the whole interesse, though

64 Actio Redhibitoria: Condemnatio in duplum [pt. i warranty is not expressly stated: it is however suggested by the words, hardly otherwise explicable in relation to an innocent vendor, venditor teneri debet quanti interest non esse deceptum¹.

Another difficulty is more striking. We have seen that the general aim of the actio redhibitoria is to undo the transaction as far as possible. It may result in a loss to the vendor, as he has to indemnify, and the buyer may even gain, since he gets interest and he might not have invested the money. But in general it is an equal adjustment. One text, however, speaks of the actions as penal’, though, so far, they are no more penal than other contractual actions. And while we are told in one text by Ulpian^[276] that the vendor is condemned unless he pays what is ordered by the Edict, another, by Gaius^{[277] [278] [279] [280], says that if he does not pay he is condemned in duplum, while if he does make the necessary pay­ments and releases he is condemned in simplum. Lenel[281] accepts this text, and assumes that the action was always penal. In each case he will have to pay double, either before or after judgment. It has been pointed out6 that this jars with the whole nature of the action as else­where recorded, and with the fact that the stipulatio as to vitia says nothing about duplum[282]. Moreover it is an absurd way of putting the matter. It is only a roundabout way of saying that the action was in duplum: of course he could pay part before judgment if he liked. And in the case where there was an agreement for redhibition at pleasure, we are told that the action was the same8. Yet it is incredible that if, when sued under such an agreement, he took the man back and paid the price and accessions he should still have been liable even in simplum*.}

Karlowa¹⁰, starting from the view, probably correct, that the rule was originally one of police, and only gradually became contractual, fully accepts the penal character of the action, and the text of Gaius. But his argument is not convincing. He treats the expression stipulatio duplae, which of course recurs frequently in this connexion, as correctly used, and rejects the current view that its duplex character relates to eviction, and that it became merely a collective name for the obligations required by the Edict¹¹. To reach this result, he repudiates the directly contrary evidence of the existing recorded sales⁷, in all of which the undertaking as to defects is simple, while the stipulation on eviction is in duplum in all cases but one. He passes in silence the significant rubric of the title on eviction¹², (de evictionibus et duplae stipulations), ch. in] Actio Redhibitoria: Condemnatio in duplum 65 and the evidence from Varro¹ as to usage : indeed he holds that there is no reason to think the edict followed usage. He quotes two texts in which Ulpian’and Julian³ say that, if the vendor refused to take back the man, he need pay no more than the price and accessions, as shewing that, if he did take him back, he would have to pay double, whereas what they mean is, as the context shews with certainty, that, if he took him back, he would have to pay both price and any damna.

Pernice⁴ thinks that the concluding words of the text of Gaius' mean no more than that if he paid, under the judge’s preliminary decision, this amounted to condemnation in simplum, and he paid no more, but, if he did not, he was condemned in duplum. But this does not explain the opening statement of Gaius that there is a duplex condemnatio and that modo in duplum modo in simplum con­demnatur venditor. Here the word condemnatio must be used in a technical sense, while the explanation offered of the ending words is clearly untechnical. Accordingly he speaks with no confidence.

Probably the solution of the problem lies in some detail, as yet undetected, in the history of the actions. The suggestion lies ready to hand that in the classical law they were in duplum in case of actual fraud. This would account for the enigmatic words about fraud at the end of the Edict⁶, the words in duplum having been struck out. It would also justify the statement that the actions were penal, and Gaius’ duplex condemnatio. But it leaves the rest of his text unexplained, unless, here too, a reference to dolus has been dropped.

If the slave is handed back without action or before indicium acceptum, there is no actio redhibitoria, but the buyer has an actio in factum to recover the price. The merits of the redhibition are not considered: the vendor has acknowledged the slave to be defective by taking him back⁷. It is essential that he have been actually taken back: a mere agreement for return is not enough⁸. Conversely the vendor can bring an ordinary action ex vendito, to recover any damage⁶. We are told that in the buyer’s action he must have handed back all accessions before he could claim¹⁰. It is also said that the fact that the slave is redhibitable is a defence to any action for the price¹¹. If there was an agreement for return on disapproval at any time or within a fixed time this was valid¹². The claims are the same as in the ordinary actio redhibitoria¹³: indeed the action is called by that name¹⁴.

¹ Varro, B.B. 2. 10. 5. « 21. 1. 29. 3. ⁸ 21. 1. 23. 8.

⁴ Labeo, 2. 2. 249; Eek, loc. cit. ⁵ 21. 1. 45. ⁶ 21. 1.1. 1 in fine.

⁷ 21. 1. 31.17. ⁸ h. I. 18. ⁹ 21. 1. 23.^r.

¹⁰ 21. 1. 31.19. ¹¹ 21. 1. tt.pr.

¹⁴ 21. 1. 31. 22. If no time was stated, there was an actio in factum within 60 days, which might be extended, causa cognita, if the vendor was in mora or there was no one to whom it could be returned or for other good cause, h. I. 23.

1» 21. 1. 31. 24. ¹⁴ C. 4. 58. 4.

66 Actio Redhibitoria: Flight or Death of the Slave [pt. i

We have said that the buyer, desirous of recovering the price, must restore the slave¹. But impossibility of this restoration may result from different causes, and the legal effect is not always the same. The case of the slave in actual present flight is not fully discussed: the starting point seems to be that as he must be restored there can ordinarily be no redhibition⁸. But the rule developed that if there was no culpa in the buyer, and the vendor had sold sciens, there might be an actio redhibitoria, the buyer giving security that he would take steps to recover the slave and hand him over³. Manumission of the slave by the buyer, says Paul, at once ended the aedilician actions⁴. This rule is remarkable and is elsewhere contradicted—such rights were not destroyed ex post facto'·. It is commonly set down to the fact that he is now a freeman, incapable of estimation⁶, but this did not destroy other such actions, e.g. the ludicium de servo corrupto⁷. It might end the a. redhibitoria, as the buyer has wilfully put it out of his power to restore, but it ought not to affect the a. quanto minoris since there is no need to estimate his present value.

Another question arose where the slave was evicted. How, it is asked, could his defects matter if the buyer has no interest, having been evicted by a third person ? But all the conditions of actio redhibitoria are present except the power of restoration, and as the absence of this is the vendor’s fault, how should this release him ? Unfortunately the texts do not really answer the question: they assume a stipulation and allow the action as not being destructible ex post facto. The buyer will recover his interesse, which is nothing if the eviction was before delivery, and will vary according to the time of actual use of the defective slave⁸. The rule as to the requirement of restoration may be more exactly stated in the form that the buyer cannot sue, ex edicto, unless he restore or the failure is without fault or privity of him or his⁹.

Death of the man does not, as of course, destroy the actions. We are told that they survive¹⁰ unless the death was due to culpa of the buyer, his familia, or procurator, etc., which means any culpa however slight, as by providing no doctor, or an inefficient one. If there is culpa we are told that it is as if he were alive, and all is to be handed over which would be handed over in that case¹¹. The meaning of this statement is not

¹ Ante, p. 61. ² 21. 1. 21. nr.; C. Th. 3. 4.1; C. 4. 58. 5. See however Eck, loc. cit.

⁸ 21.1. 21. 3. And that neither he nor his heres would do anything to prevent the vendor from having the slave, h. t. 22.

⁴ 21.1. 47. pr., including claims on dicta promissa.

⁵ 21.1. 44. 2; 21. 2.16. 2. It will be remembered that though the action on the stipulation for eviction was lost by manumission, this was because there was in fact no eviction.

⁶ Eck, op. cit. 173. 7 Ante, p. 34.

⁶ 21.1. 44. 2; 21. 2.16. 2. In which Pomponius states obscurely the view of Proculus and sums it up in the sense here indicated. The rule may have been the same if there was no stipulation, for the rule that rights of action are not destroyed ex post facto has no necessary connexion with stipulation. 9 e.g. he has been robbed of the slave. 21.1. 43.5.

W 21. 1. 31. 6, 31. 24, 47. 1. m 21. 1. 31. 11, 12,14, 48. pr.

ch. m] Redhibition where several slaves sold 67

too clear. It is sometimes said that the rule is that he must give the value of the slave in his stead¹. This is in itself rational and may be what is meant. But it is not precisely what the text says, and it is more favourable to the buyer than the rule in the case of flight, culpa eius, apart from scientia of the vendor^{[283] [284].}

We have hitherto assumed a single slave, buyer, and vendor. In each case more than one might be concerned, and the cases must be taken separately.

(a) More than one slave is sold. If all are defective no question arises. But there is a question how far, on the defect of one, he can be redhibited separately. It is clear that a right of redhibition arises on defect of only one : our question is: what are its limits ? The fact that they were sold at a lump sum may have been the sole point for Labeo and Africanus^[285] as it certainly was one of the first to be considered^[286]. But it was not the decisive point in classical law. Africanus’ himself observes that even where there were several prices the right to redhibit all may arise on defect of one, e.g. where they were of no use for their special function separately. Troupes of actors are mentioned and, for other reasons, persons related as parents, children or brothers^[287]. Ulpian and Paul lay down the rule that sale in a lump sum does not exclude redhUritio of one, apart from these special cases^{[288] [289] [290] [291]. Where one is red­hibited in this way, his relative value is taken into account in fixing the price returnable, if there was a lump price, but not otherwise’. It may be added that if there was an express warranty that the slaves were sanos, and one was not, Labeo is reported as saying that there can be redhibition de omnibus, but these words are generally rejected’.}

(b) More than one person entitled as buyer. The case most dis­cussed in the texts is that of a buyer who has left several heirs. The general rule is laid down by Pomponius, quoted by Ulpian, that there can be no redhibition unless all consent, lest the vendor find himself paying damages in quanto minoris to one, and part owner by redhibition from another. He adds that they ought to appoint the same procurator ad agendum¹â€ś. If one of the heirs has done damnum he is of course liable in solidum for it, arbitrio iudids, and if it has been paid by a 68 Redhibition. More than one buyer or vendor [pt. i common procurator there will be an adjustment by indicium familiae erciscundae¹. The various things due to them from the vendor can be paid pro rata, except indivisibles, such as partus ancillae, which must be given in solidum in common³. Similar rules apply to an original pur­chase in common : neither can redhibit alone*. To this, however, there are two obvious exceptions: if the contract were solidary, any buyer could redhibit in solidum, and if there was nothing in common in the contract, but there were quite separate contracts for parts, each could redhibit as to his share⁴.

(c) More than one person entitled as vendor. Here, if there are several heirs to the vendor, or there were common owners, there may be redhibition pro rata, and if the vendors were selling, separately, distinct shares, the rule is the same, so that there may be redhibition in respect of one, and actio quanto minoris in respect of another. But if they were solidary vendors there may be redhibition in solidum against any·.

Restrictive covenants are somewhat prominent in the sale of slaves. These are not conditions on the sale in the sense that breach of them avoids it: they are, for the most part, directions as to what is to be done with the slave, breach of which does not produce in all cases the same effect, since some are imposed for the benefit of the slave, some for the protection of the late owner, and some by way of mere punish­ment. Some of them also present exceptions to the general rule that obligations could not be assigned, and that one could not attach perma­nent incidents to the holding of property, except within the conception of servitudes. It is clearly laid down that a man cannot validly promise that another shall do or not do⁸. As in English law the inconvenience was felt, and one instructive text shews that the Romans took advantage of the rules of usufruct to lay down a rule which, within a very narrow field, presents a close analogy to the rule in Tulk v. Moxhay⁷. A. held property, subject to restrictions, which he had bound himself under a penalty to observe. On his death he left a usufruct of this to X. X., who had notice, was bound to observe the restrictions, (which were purely negative,) not on the impossible ground of an assignment of the obligation, but because to disregard them was not enjoying the property bono viri arbitratu^s. The cases must be taken separately⁹.

¹ 21.1. 31. 9. It seems from the language of this text which Ulpian gives on the authority of Pomponius that the single procurator was matter of convenience not of absolute rule.

² 21.1. 31. 6.

s 21.1. 31. 7, 8. Nor could one alone compel delivery: the vendor has a lien till he is wholly paid.

< 21.1. 31. 10. 6 Ibid.

« 45.1. 38.1. Stipulations are found in which the promisor undertakes for himself et eos ad quos ea res pertinebit (e.g. 32. 37. 3). The reference is to the heres.

1 Tulk v. Moxhay, 2. Ph. 774.

⁸ 7.1. 27. 5. Probably even here the grantor to A. could not have enforced it.

® As to �real’ effect, Dieting, Etudes Compl6m. 8. 62.

I. The slave sold ut exportetur, or the like. This condition was regarded as imposed entirely in the interest of the vendor, who could therefore remit it¹. If a penalty was agreed on by stipulation, this was clearly enforceable, but only from the promisor, even though there was a second buyer who allowed him to be in the forbidden place²: it was the second sale, which was his act, that made this possible. He could of course impose a similar penalty on the buyer from him, and so protect himself.

If the agreement for a penalty had been informal, there was a difficulty. The older lawyers could find no interesse. The mere desire to inflict a hardship on the slave was no interesse: in enforcing this there was no rei persecutio, but a poena. This could not figure in an actio ex vendito. This is Papinian’s earlier view³, but in an adjoining text* he declares himself converted to the view of Sabinus, i.e. that the lower price at which he was sold was a sufficient interesse. The result is con­venient but not free from logical difficulty. The reduction in the price is causa rather than interesse. The real interesse is the value to him of the man’s absence³. If a vendor had himself promised a penalty, this would, on any view, be a sufficient interesse, for any agreement for a penalty, with a buyer from him : it would indeed form the measure of its enforceability⁸. One would have expected to find some necessary relation between the amount of the penalty in our case and the reduction in the price’.

The penalty was not incurred at all in the case of a fugitive, or one who was in the place without leave of his master⁸: a slave could not impose liabilities on his master in that way.

The restriction was a bar to any manumission in the place before export: such an act was therefore void⁹. But it did not prevent manu­mission, ante fidem ruptam, elsewhere¹⁹, and it appears that if the man returned after manumission, the Fisc seized and sold him into perpetual slaveiy under the same condition¹¹.

The mere imposition of a penalty gave the late owner no right to seize the slave: he went to the Fisc¹². But it was usual to agree for a

^I Vat. Fr. 6; D. 18. 7. 1. ¹ 18. 7. 9; C. 4. 55. 1, 2.

s 18. 7. 7. ¹ 18. 7. 6.

⁵ The question of interesse gave rise to difficulties in case of will. A testator directs that a slave be sold for export. Who can enforce this ? By what right? Ulpian says doubtfully that it will enter into the officium iudicis in familiae erciscundae, a rule which was reached in the case of a direction to keep a slave chained, 10. 2. 18. 2; C. 3. 36. 5. But what if there were nothing else in dispute? In any case affectionis rations recte agetur—a penalty informally agreed on was enforceable if the covenant was ne exportaretur or the like: the benefit intended was enough, 18. 7. 7.

⁶ Ibid. ⁷ Ihering (French trans.), (Euvres choisies, 2.150.

8 18. 7.9; C. 4. 55. 2. 9 c. 4. 55. 3. w h. t. 1.

^II Ibid. Post, Ch. xxv. The restriction was construed rather against the slave: one sold to be out of his province might not go to Italy. C. 4. 55. 5. If thepomerium was barred, the town was barred, a fortiori. But one sold to be out of Italy might be in any province not expressly barred, 18. 7. 2, 5.

C. 4. 55. 2. The vendor has actio ex vendito. power of seizure on return (manus iniectio) : the right to seize arose on return by consent of owner, and could be remitted, as the penalty could¹. It applied though the slave had been transferred to another person^{[292] [293]}; the incapacity and liability to seizure being impressed on the slave. But any buyer could manumit him elsewhere before breach of the condition, and, if he then returned, he was seized by the Fisc and dealt with as above^[294]. Though the condition bound the slave in the hands of third parties the buyer selling would be liable, ex empto, if he did not communicate it. Thus it was usual to give notice on any resale. The resale might be subject to the same condition. If, in that case, he returned with the consent of his owner, it w’as the original vendor who had the right of seizure, as auctor legis. The intermediate owner’s restriction was merely regarded as notice and for self-protection: he could not supersede his vendor’s right of seizure^[295].

II. An ancilla sold ne prostituatur. This restriction is imposed in the interest of morality, and of the ancilla, and is therefore somewhat different in its effects from the foregoing. Breach of the provision involved freedom of the woman, according to rules which varied from time to time, and will require full discussion hereafter^{[296] [297]. The Digest tells us nothing as to the effect, in classical law, of a mere proviso, ne prostituatur, without more. After Marcus Aurelius the woman became free’. If there were an express agreement that she was to be free she became so, under earlier law, however informal the agree­ment was[298]: it was a quasi-manumission depriving the buyer of his rights on the sale[299]. The vendor was her patron[300]. The effect was the same, by a provision of Vespasian, even though she had been resold without notice of the proviso[301].}

If there had been merely a stipulation for a penalty, then, apart from the question of liberty, this could always be recovered¹¹. So could a penalty informally agreed for: there seems to have been no doubt as to the sufficiency of the interesse, where what was aimed at was benefit to the slave¹². The penalty was recoverable only from the promisor, but it applied even where the actual wrongdoer was a second assignee, even without notice¹³. If a right of manus iniectio had been reserved, this was effective, at any rate after Hadrian, as against any owner of the ancilla¹'¹. If on a first sale the agreement was that she was to be free, and, on the second, for manus iniectio, or vice versa, she was always free. In the first case this is a necessary result of the fact that the second vendor could not undo the condition, but in the second case it is clear that to free the woman is to undo the condition imposed by the first vendor. Paulus explains the rule as a case of favor libertatis, which hardly justifies what is in effect an act of confiscation. Accordingly he supplements this, by saying that such a condition was in any case not imposed with a view of getting her back, but in her interest, which is equally served by giving her freedom¹. It will be seen that in the case of a provision against prostitution there was no power to remit the condition: it was not imposed in the interest of the vendor².

III. One sold ut manumittatur, ne alterius servitutem patiatur, etc. As by a constitution of about A.D. 176, breach of this condition involved the slave’s becoming free, ipso facto, it follows that it was never really broken, and a penalty, however formally agreed on, was never incurred³. Even if there was a condition of manus iniectio the result was the same: the slave was free; the right of seizure was only auxilii causa*. A text of Scaevola’s seems at first sight in direct conflict with this principle⁸. A slave is given, with a declaration that it is with a view to manumission, and a stipulation for a penalty if he is not freed, vindicta. Scaevola says, giving as usual no reasons, that the penalty is recoverable, though the person liable can always evade it by freeing. He adds that if no action is taken liberty is still due. Nothing turns on its being a donation, for the rule that liberty took effect ipso facto applied equally there⁸. Nor is it likely that the fact, that the agreement was for manumission vindicta, has anything to do with it, though this would not strictly be satisfied by freedom acquired in another way. It is more probable that the text represents an earlier state of the law. Scaevola’s Digest seems to have been written under Marcus Aurelius⁷ at the end of whose reign the constitution mentioned was passed. The language shews that the writer contemplates liberty as not taking effect ipso facto, though it is clear that he considers the penalty as at once recoverable. He says, in the end of the text, that the liberty requires to be conferred. It is clear that this was the earlier state of the law. In one text⁸ Hadrian appears as saying that in such cases the slave was not free until manu­mitted⁹.

Hadrian required the magistrate to declare the woman free, the vendor being still her patron but with limited rights, 2. 4. 10. 1; C. 4. 56. 1. On similar principles Severus and Caracalla provided that, if a right of manus iniectio reserved were released, for money, the woman was free, 40. 8. 7.

¹ 18. 7. 9. 2 p. 70, n. 14.

³ 40. 1. 20. 2; C. 4. 57. 6. Post, Ch. xxvn. * 40. 1. 20. 2.

⁵ 45. 1. 122. 2. « C. 4. 57. 1.

⁷ Roby, Introd, to Dig. clxxxvi. 8 18. 7.10.

^fi As to vendor’s power of withdrawal, post, Ch. xxvn.

72

Slave sold ne manumittatur [pt. i, ch. hi

IV. One sold ne manumittaiur¹. As we shall see later, the effect of such a provision was to make the slave incapable of manumission®. As in the last case, therefore, the proviso cannot be disobeyed, and the penalty cannot be recoverable. And so Papinian, and Alexander in the Code, lay it down^{[302] [303] [304]. It seems, however, that Sabinus thought that, if the form were gone through, this was breach of the condition and entitled to the penalty. Others thought that the claim on such ground though formally correct should be met by an exceptio doli. But Papinian is clear that what the stipulator meant was actual manumission, not the form, and that thus there has not been even a formal breach of the condition[305].}