De servis exportandis: vel si ita mancipium venierit ut manumittatur vel contra
(Concerning the removal of slaves, and where a slave is sold under the condition of being manumitted, or the contrary.)
1 Ulpianus libro trigesimo secundo ad edictum. Si fuerit distractus servus, ne aliquo loci moretur, qui vendidit in ea condicione est, ut possit legem remittere, ipse Romae retinere. quod et Papinianus libro tertio respondit: propter domini enim, inquit, securitatem custoditur lex, ne periculum subeat.
1 Ulpianus, On the Edict, Book XXXII. Where a slave is sold under the condition that he is not to remain in a certain place, the party who sold him under this condition can remit that part of the contract, and allow him to remain at Rome. Papinianus says in the Third Book that this condition is to be observed on account of the safety of the master, to prevent his being exposed to danger.
2 Marcianus libro secundo publicorum. Exportandus si venierit ab Italia, in provincia morari potest, nisi specialiter prohibitum fuerit.
2 Marcianus, Public Affairs, Book II. Where a slave is sold on condition of his being removed from Italy, he can remain in a province unless this was expressly prohibited.
3 Paulus libro quinquagesimo ad edictum. Si quis hac lege veniit, ut intra certum tempus manumittatur: si non sit manumissus, liber fit, si tamen is qui vendidit in eadem voluntate perseveret: heredis voluntatem non esse exquirendam.
3 Paulus, On the Edict, Book L. Where a slave is sold under the condition that he shall be manumitted within a certain time, if he is not manumitted, he becomes free; notwithstanding that the party who sold him may still adhere to his original intention. It is not necessary to ascertain the wish of the heir.
4 Marcellus libro vicesimo quarto digestorum. Si minor viginti annis servum tibi in hoc vendiderit et tradiderit, ut eum manumitteres, nullius momenti est traditio, quamquam ea mente tradiderit, ut, cum viginti annos ipse explesset, manumitteres: non enim multum facit, quod distulit libertatis praestationem: lex quippe consilio eius quasi parum firmo restitit.
4 Marcellus, Digest, Book XXIV. If a minor under twenty years of age sells you a slave and delivers him, under the condition that you will manumit him, the transfer is of no effect; even though he may have delivered him with the intention that, when he had reached the age of twenty, you should manumit him; for it makes very little difference if the date of his freedom is deferred, for the law opposes a provision of this kind as not being well founded.
5 Papinianus libro decimo quaestionum. Cui pacto venditoris pomerio cuiuslibet civitatis interdictum est, urbe etiam interdictum esse videtur. quod quidem alias cum principum mandatis praeciperetur, etiam naturalem habet intellectum, ne scilicet qui careret minoribus, fruatur maioribus.
5 Papinianus, Questions, Book X. Where a slave is forbidden by an agreement with the vendor to reside in the suburbs of a certain city, he is also held to be forbidden to reside in the city itself. And, indeed, although this has been prescribed by the Edicts of the Emperors, its meaning is obvious, for he who is deprived of a residence in the less important parts of a city, cannot enjoy one in the more important parts of the same.
6 Idem libro vicensimo septimo quaestionum. Si venditor ab emptore caverit, ne serva manumitteretur neve prostituatur, et aliquo facto contra quam fuerat exceptum evincatur aut libera iudicetur, et ex stipulatu poena petatur, doli exceptionem quidam obstaturam putant, Sabinus non obstaturam. sed ratio faciet, ut iure non teneat stipulatio, si ne manumitteretur exceptum est: nam incredibile est de actu manumittentis ac non potius de effectu beneficii cogitatum. ceterum si ne prostituatur exceptum est, nulla ratio occurrit, cur poena peti et exigi non debeat, cum et ancillam contumelia adfecerit et venditoris affectionem, forte simul et verecundiam laeserit: etenim alias remota quoque stipulatione placuit ex vendito esse actionem, si quid emptor contra quam lege venditionis cautum est fecisset aut non fecisset. 1Nobis aliquando placebat non alias ex vendito propter poenam homini irrogatam agi posse, quam si pecuniae ratione venditoris interesset, veluti quod poenam promisisset: ceterum viro bono non convenire credere venditoris interesse, quod animo saevientis satisfactum non fuisset. sed in contrarium me vocat Sabini sententia, qui utiliter agi ideo arbitratus est, quoniam hoc minoris homo venisse videatur.
6 The Same, Questions, Book XXVII. Where a vendor takes security from a purchaser that he will not manumit a female slave, or subject her to prostitution, and, if any act is committed in violation of this provision she can be recovered by her master or considered free, and a penalty be demanded on the ground of a stipulation; certain authorities hold that an exception based on bad faith can be pleaded, but Sabinus thinks that this cannot be done. Reason, however, suggests that a stipulation cannot legally stand, if the condition, “That she should not be manumitted,” is left out, for it is incredible that one should have intended to have manumitted a slave, and not have had in mind an act which would accomplish it. But where it is provided that the slave shall not be subjected to prostitution, there is no reason why the penalty should not be sued for and collected, as the purchaser would have brought disgrace upon the slave and impugned the intentions of the vendor at the same time; for, leaving the stipulation out of consideration altogether, it has been established that an action on sale will lie. 1Where a purchaser either commits, or does not commit an act contrary to the provisions governing the sale, we have sometimes decided that the vendor cannot bring an action on sale to have him punished, unless the vendor had a pecuniary interest in the matter, as, for example, because he himself had promised a penalty; but it is not expedient to believe that a good citizen would hold that it was to the interest of the vendor to have his rage appeased in this way. The opinion of Sabinus, however, induces me to hold the contrary, for he thinks that an action can properly be brought, as the slave seems to have been sold for a lower price on account of the condition.
7 Idem libro decimo quaestionum. Servus ea lege veniit, ne in Italia esset: quod si aliter factum esset, convenit citra stipulationem, ut poenam praestaret emptor. vix est, ut eo nomine vindictae ratione venditor agere possit, acturus utiliter, si non servata lege in poenam quam alii promisit inciderit. huic consequens erit, ut hactenus agere possit, quatenus alii praestare cogitur: quidquid enim excedit, poena, non rei persecutio est. quod si, ne poenae causa exportaretur, convenit, etiam affectionis ratione recte agetur. nec videntur haec inter se contraria esse, cum beneficio adfici hominem intersit hominis: enimvero poenae non inrogatae indignatio solam duritiam continet.
7 The Same, Questions, Book X. A slave was sold under the condition that he should not remain in Italy, and it was agreed between the parties, without a stipulation, that if the condition was not complied with the purchaser should pay a penalty. It is difficult to conclude that the vendor can bring an action on this ground through a desire for vengeance; but he can properly do so if the condition is not observed, and liability for the penalty promised should attach. The result of this will be, that he can only bring suit for what the purchaser is obliged to pay, for whatever is in excess of that is a penalty, and not an attempt to recover the property. If, however, the agreement had been that the slave should not be removed by way of penalty, an action can properly be brought on the ground of affection; nor do these two cases seem to be antagonistic, since it is the interest of one man that another should be benefited; for, in fact, the indignity of the penalty which is not inflicted possesses only the attribute of cruelty.
8 Idem libro vicesimo septimo quaestionum. Quaesitum est, si quis proprium servum vendidisset et ut manumitteretur intra certum tempus, praecepisset ac postea mutasset voluntatem et emptor nihilo minus manumississet, an aliquam eo nomine actionem haberet. dixi ex vendito actionem manumisso servo vel mutata venditoris voluntate evanuisse.
8 The Same, Questions, Book XXVII. The question arose whether, where a man sold his own slave, and directed that he should be manumitted within a certain time, and afterwards changed his mind, and the purchaser, nevertheless, manumitted him, he would be entitled to any action on this ground. I stated that the right of action on the ground of sale was extinguished if the slave was manumitted, or the vendor changed his mind.
9 Paulus libro quinto quaestionum. Titius servum vendidit ea lege, ut, si Romae moratus esset, manus inicere liceret: emptor alii eadem lege vendidit: servus fugit a secundo emptore et Romae moratur: quaero, an sit manus iniectio et cui. respondi: in fugitivo non est dubitandum nihil contra legem factum videri, quia nec domino auferre se potest nec qui in fuga est ibi moratur. quod si ex voluntate secundo emptoris contra legem moratus sit, potior habendus est qui auctor fuit legis, et posterior magis admonendi emptoris et liberandi se eandem legem repetierit nec poterit aliquo modo auferre legem sui venditoris cuius condicio exstitit: nam et si poenam promisisset, tenetur, licet ipse quoque stipulatus esset: sed in poena promissa duae actiones sunt, manus autem iniectio in servum competit. quod si prior ita vendidit, ut prostituta libera esset, posterior, ut manus inicere liceret, potior est libertas quam manus iniectio. plane si prior lex manus habeat iniectionem, posterior libertatem, favorabilius dicetur liberam fore, quoniam utraque condicio pro mancipio additur et sicut manus iniectio, ita libertas eximit eam iniuriam.
9 Paulus, Questions, Book V. Titius sold a slave on condition that if he remained at Rome he would be permitted to arrest him. The purchaser sold him to another party under the same condition, and the slave escaped from the second purchaser, and remained at Rome. I ask whether he could be arrested, and if this was the case, by whom? I answered, there was no doubt that, as he was a fugitive, nothing would be held to have been done contrary to the condition, as he had no right to leave his master; nor, merely because he was a fugitive, could he establish his residence at Rome. If, however, he remained there with the consent of the second purchaser, the party who imposed the condition should be preferred, and the second vendor is only held to have had recourse to it for the purpose of warning the purchaser, and releasing himself from liability; for he could, in no way deprive his vendor of the benefit given by the condition, as if he promised to pay a penalty he would be liable even though he himself had also stipulated for the same penalty. But where a penalty is promised, two actions will lie, and the slave can be arrested. If, however, the first vendor made the sale under the condition that if the slave became a prostitute she should be free, and the second one that she could be seized; freedom will be preferred to the right of arrest. It is clear that if the first condition included the right of seizure, and the last one that of freedom, it must be held that the one granting her freedom will have the preference; since both conditions are added for the benefit of the slave, and, as arrest by the vendor releases her from harm, so freedom produces the same effect.
10 Scaevola libro septimo digestorum. Cum venderet Pamphilam et Stichum, venditioni inseruit pactum conventum, uti ne eadem mancipia Pamphila et Stichus, quos minorato pretio vendidit, alterius servitutem quam Seii paterentur post mortemque eius in libertate morarentur: quaesitum est, an haec mancipia, de quibus inter emptorem et venditorem convenit, post mortem emptoris iure ipso liberata sint. respondit secundum constitutionem divi Hadriani super hoc prolatam Pamphilam et Stichum, de quibus quaereretur, si manumissi non sint, liberos non esse. Claudius: Divus Marcus ex lege dicta libertatis in vendendo quamvis non manumissos fore liberos in semenstribus constituit, licet in mortis tempus emptoris distulit venditor libertatem.
10 Scævola, Digest, Book VII. A certain man sold Pamphilus and Stichus, and inserted in the contract of sale that, as he had sold the said slaves at a low price, they should be subject to no servitude but that of Seius, and that, after his death, they should remain in freedom. The question arose whether the slaves, concerning whom this agreement had been made between the purchaser and the vendor, would become free by mere operation of law, after the death of the purchaser? The answer was that, in accordance with the Constitution of the Divine Hadrian, promulgated with reference to this point, if Pamphilus and Stichus, the slaves in question, were not manumitted, they would not become free. Claudius says that the Divine Marcus decided that where a condition of freedom was inserted in the contract of sale, the slaves would become free in six months, even if they were not manumitted, although the vendor had deferred their freedom until the death of the purchaser.