"Neither a Truant nor a Fugitive": Some Remarks on the Sale of Slaves in Roman Egypt and Other Provinces

The Edict of the Curule Aediles

Legally, these rules and conditions were most of all based on the edict of the curule aediles that regulated the market against defects in slave merchandise.[3] A large part of this edict has been preserved at the beginning of book 21 of Justinian's Digest. The most important clauses concerning the sale of a slave are the following:

The mention of the vendor's promise at the time the sale took place allowed Roman jurists, like Gaius or Ulpian, to conclude that the edict called on the vendors to guarantee that the slaves that should be sold were free from any diseases or defects, and no wanderers or fugitives. Gaius comments on the edict – Dig. 21.1.32 (Gaius 2 ad ed. aedil. curul.): Itaque ... venditor de morbo vitiove et ceteris quae ibi comprehensa sunt praedicere iubetur, et praeterea in his causis non esse mancipium ut promittat praecipitur. "... the vendor is required to notify the purchaser of any disease, defect, or other fault, included in the edict, and moreover it is set forth that he must guarantee that the slave has none of these defects." And Ulpian confirms – Dig. 21.2.37.1 (Ulpianus 32 ad ed.): per edictum autem curulium etiam de servo cavere venditor iubetur. "By the curule edict the vendor is also ordered to furnish security in the case of the sale of a slave" (both tr. by S.P. Scott [http://www.constitution.org/sps/sps05.htm]).

As Éva Jakab, in her extensive study on the edict, has shown, the curule aediles did not unconditionally force the parties to act according to all the details mentioned in the edict, but its clauses were meant to be used as a model, highly recommended by the aediles. This coincides with a comment of Ulpian – Dig. 2.14.31 (Ulpianus 1 ad ed. aedil. curul.): Pacisci contra edictum aedilium omnimodo licet, sive in ipso negotio venditionis gerendo convenisset sive postea.[4]

The aim of the edict was to prevent the purchaser from false information about a slave by the vendor. It did not regulate the form or even type of information that had to be used by the vendor. And, it did not force the vendor to give any guarantee at all. But, it ordered the vendor of a slave to provide clear and public information about any diseases or defects of the slaves, if they had ever run away, or proved to be a truant, or had not been released from liability for damage which they had committed. If nothing of that was true, according to the edict of the curule aediles, the vendor was not obliged to provide any information at all. On the other hand, the edict clearly forced the vendor to keep all the promises he made, which means: the vendor was reliable for all that he said and promised (dictum et promissum) at the time of the sale. There was no order by the aediles to make any promises or give any guarantees at all, but if the vendor made any, he was required to keep them. In violation of these rules the aediles granted an action to compel the vendor to take back the slave.

Visual and Symbolic Signification of Defects

On the background of this interpretation of the edict, there is no wonder that we find several different forms of how the slave merchants provided the requested information about the slave's past. A very common form was the so-called titulus, a label put around the neck of the slave stating his diseases, and if she or he had run away or roamed about before. There are no references to such a titulus in the papyri or inscriptions, but a very good one in Roman literature: Gellius (in NA 4.2.1) explicitly refers to the edict of the curule aediles and writes: In edicto aedilium curulium, qua parte de mancipiis vendundis cautum est, scriptum sic fuit: "Titulus servorum singulorum scriptus sit curato ita, ut intellegi recte possit, quid morbi vitiive cuique sit, quis fugitivus errove sit noxave solutus non sit."[5] Also symbolic outfits could inform the potential purchaser about the slave's past: the corona would identify him as a prisoner of war, whereas a certain type of cap, called pilleus, meant that the vendor was not providing any guarantee at all, thus informing the purchaser that he could buy this slave at a relatively low price.[6] Criminal slaves and fugitivi were brought in chains to the market.[7] Obviously, the diseases and defects of a slave, and whether she or he was a fugitivus or an erro, could be stated also orally, as attested by Horace in a letter to his friend Florus – Hor. epist. 2.2.1–19:

In clearly informing the potential purchaser that the slave once ran away and is therefore a fugitivus, the slave dealer has fulfilled his duties according to this particular regulation of the aedilician edict.

Slave Sale Contracts

A more sophisticated option to file all the information and details necessary for selling or buying a slave is a sale contract. And we may assume that such a contract included all the information presented to the purchaser in an oral or symbolic manner, before drawing up the contract. As already mentioned, among the documents from outside Egypt, preserved on papyri, ostraca, and waxed tablets, there are relatively numerous slave sale contracts. But, to what extent are these contracts influenced by, or even based on the curule edict? Actually, it is still one of the most discussed questions, concerning the edict, if and inasmuch it was valid also in other provinces besides Italy.[9]

What we have are explicit references to the edict of the curule aediles in contracts preserved on waxed tablets from Puteoli[10] and Herculaneum,[11] and on papyri from Side in Pamphylia,[12] Seleucia Pieria (Syria),[13] and the Arsinoite nome in Egypt.[14] In addition, also the phrase bonis condicionibus, signifying that the sale took place under "good conditions" can be considered as a clear reference to the conditions explained in the edict.[15] It is attested in a contract from Ravenna.[16] A contract from Seleucia Pieria[17] contains both phrases. Probably, the phrase καλῇ αἱρέσει can be identified as the Greek equivalent to bonis condicionibus; it is attested in several contracts from Egypt and one from Ascalon/ Phoenicia.[18] It is also important to notice that the contracts from Side, Ravenna, Seleucia, and Ascalon were brought to Egypt, obviously together with the purchased slaves, and found there.[19]

An overview of the preserved slave sale contracts presents a somewhat surprising image: there is not one among these contracts where the vendor informs the buyer about any disease or defect of the slave, or that the slave to be purchased has ever run away or behaved as a vagabond before.[20] On the contrary, many vendors confirm the slave's healthy condition, whereas some exclude a guarantee concerning epilepsy and leprosy, others refuse to guarantee that the slave is neither a truant nor a fugitive,[21] comparably few slave dealers include such a guarantee in the contracts.

The oldest of these documents are the fragments of a diptych of waxed tablets from Puteoli, inscribed on August 21, 38 CE (T.Sulpicii 43).[22] Tablet I is lost. Tablet II, page 3 reads:

Tablet II, page 4 contains the signatures.

The contract clearly refers to the edict of the curule aediles when guaranteeing that the slave to be sold is not a fugitive and not a truant.[23] As I have already mentioned, this particular clause is rarely found in the contracts. The clause and its variants may serve as a test case to the question, how the practice of slave commerce accepted and verified the rules of the aedilician edict, and what were the major interactions between the practice of the law ("Rechtspraxis") and the practice of business or commerce ("Geschäftspraxis").

A complete document that addresses all major subjects of the edict – including the fugitivus and the erro – is preserved on a triptych from Alburnus Maior in Dacia from May 16, 142 (T.Dacia 7):[24]

The text reads:

The text continues with the stipulation in good faith (fide), that if a third party might ever express any claim on the slave or a part of him, Bellicus, the vendor, has to pay the double price to Dasius Breucus. Tabula II and III continue with the exempli exterioris pagina prior and posterior, presenting a copy of the same text with only minor orthographic changes.

From a legal perspective, two parts can and have to be distinguished, the so-called "Sachmängelhaftung" – a kind of guarantee concerning the quality of the object that is to be sold, and the "Rechtsmängelhaftung" – a guarantee that the contract is formally correct and valid, and that the object of sale is free from any claims. In the contracts from Dacia, this distinction is clearly visible. A similar contract from Alburnus Maior is T.Dacia 6 (March 17, 139). Two more Latin contracts from Herculaneum are very similar (T.Hercul. 62 [November 30, 47 CE]; 60 [before 63/64 CE]).[25]

A Greek contract from Side in Pamphylia, BGU III 887,[26] drawn up on July 8, 151 CE, almost exactly follows the same pattern. But, another contract from Side, P.Turner 22, drawn up about nine years earlier (in 142 CE), is slightly different. In this contract, the "Sachmängelhaftung" and the "Rechtsmängelhaftung" are – at least partly – combined, as it is stated that the double price is paid back not only if it turns out that the slave is not free from others' claims but also if any of the diseases or defects mentioned before were true, l. 5–7 and 21–25:[27] ἐὰν δέ τι τούτων ᾖ ἢ μὴ ᾖ ὑγ̣ιὴ<ς> ἢ ἐπαφὴ αὐ̣τ̣[οῦ] | [ἢ ἐκ μέρους γένη]τ̣α̣ι̣ καὶ ἐκνεικηθῇ τότε διπλῆ̣ν τὴ̣ν̣ τ̣ε̣[ι]μ̣ὴ[ν] χω̣ρ̣ὶ̣[ς] π̣α̣|[ραγγελίας καλῶς δο]θ̣ῆναι πίστει ἐπερώτη̣[σεν] Π̣ά̣μ̣φιλ̣ο̣[ς ὁ] κ̣α̣[ὶ] Κ̣ά̣ν̣ω̣[π]ο̣ς̣ | [Αἰγύπτου, πίστει δοῦ]ν̣αι ὡμολόγησεν Ἀ[ρ]τε̣[μίδωρ]ο̣ς̣ Ἀριστο[κ]λ̣έ̣ους καὶ τὴ̣ν̣ | [τιμὴν κεκομίσ]θ̣α̣ι̣ ("If, however, anything of that is the case, whether she is not healthy or someone puts a claim on her, as a whole or in part, and is successful in that, that in this case the double amount without (need of) summons will be paid correctly, Pamphilos also called Kanopos son of Aigyptos requested in good faith, and to pay it Artemidoros son of Aristokles acknowledged in good faith, and to have received the price").

So far, these seven slave sale contracts are the only ones that were drawn up during the first century and the first half of the second century and contain some kind of guarantee that the slave is "neither a truant nor a fugitive" – in Latin: fugitivom erronem non esse, in Greek: μήτε ῥέμβον μήτε δραπετικόν. There is no contract with this clause that was written in Egypt. On the contrary, if slave sale contracts from Egypt of that period address this point, the vendor of the slave is obviously eager to exclude any guarantee for it. The oldest of those contracts is BGU IV 1059[28] and was written in the time of Augustus (30 BCE–14 CE) in Alexandria. The relevant passage reads, l. 17–18: δρασμὼν (l. δρασμὸς) δὲ καὶ θανάτου (l. θάνατος) τῆς δούλης ἀπὸ τοῦ νῦν οὐκ ἔσται πρὸς τὴν | Λαοδίκην, thus confirming that "from now on the running away and death of the female slave will not be in the responsibility of Laodice anymore," i.e. the vendor of the slave.[29] Six other contracts preserve the clause βεβαιώσω τὴν πρᾶσιν πάσῃ βεβαιώσει πλὴν δρασμοῦ,[30] and – based on BGU IV 1059 – I am quite convinced that with this clause the vendor "guarantees the sale with every guarantee, except against flight."[31] From a legal point of view, the extension πλὴν δρασμοῦ would not have been necessary as the βεβαίωσις clause was a general guarantee against legal defects ("Rechtsmängelhaftung") such as claims of others, and not a guarantee against defects of the object of purchase itself ("Sachmängelhaftung").[32] But, it seems that originally and in practice the βεβαίωσις was used as a guarantee against all kinds of defects.[33]

The earliest contract written in Egypt, stating that the slave to be sold is neither a truant nor a fugitive, is SB III 6016,[34] drawn up in Alexandria on March 28, 154 CE.[35] The slave is described as "born in Alexandria" (ἐνγενοῦς Ἀλεξαν|δρίᾳ, l. 22–23), and as "faithful and not running away and being without epilepsy and claim (of others)[36]" (πιστοῦ καὶ ἀδράστου | καὶ ὄντα ἐκτὸς ἱερᾶς̣ νόσου | καὶ ἐπαφῆς, l. 26–28). The same clause is found in only two other contracts, both written in the first half of the 4th century (P.Abinn. 64 [Alexandria or Philadelphia; 337–350 CE]; SB V 8007 with BL IV, 82 [Hermoupolis?; first half IV CE]).

In a contract, drawn up in Ascalon/Phoenicia on October 12, 359 CE (BGU I 316)[37], the vendor guarantees for up to six months that the sold slave is free from epilepsy and an old disease and a hidden defect, and for up to twelve months that he is no fugitive: ἱερὰν δὲ νόσον καὶ σίνος | παλεὸν καὶ κρυπτὸν πάθος μέχρις μηνῶν ἓξ καὶ | δρασμὸν μέχρις μηνῶν δέκα δύο ὁμοίως ὁ | πεπρακὼς καὶ διάδοχοι αὐτοῦ βεβαιώσουσιν τῷ | πριαμένῳ καὶ διαδόχοις αὐτοῦ ἢ ἐκτίσουσιν αὐτῷ | τὴν τειμὴν καὶ τὸ βλάβος κτλ. Obviously, this clause refers to a passage of the aedilician edict, that was commented upon by Ulpian – Dig. 21.1.19.6 (Ulpianus 1 ad ed. aedil. curul.): tempus autem redhibitionis sex menses utiles habet: si autem mancipium non redhibeatur, sed quanto minoris agitur, annus utilis est. sed tempus redhibitionis ex die venditionis currit aut, si dictum promissumve quid est, ex eo ex quo dictum promissumve quid est. "The time fixed for the return of the property is six available months. If, however, the slave is not returned, but an action is brought for the deficiency in his value, this can be done within a year. Moreover, the time allowed for the return begins to run from the day of the sale, or, where anything has been stated or promised, from the day on which the statement or promise was made" (tr. by S.P. Scott [http://www.constitution.org/sps/sps05.htm]). Yet, the contract from Ascalon does not distinguish between six months for the return of the slave and twelve months for the deficiency in his value as would be the regulation of the edict, but between a guarantee for six months concerning diseases and a guarantee for a whole year concerning the slave's eventual running away.

The following two tables present an overview of the two groups: Table 1 contains the relevant data of contracts including a statement that the slave is no truant and no fugitive; Table 2 lists those contracts that exclude a guarantee concerning vagabondage and flight.

Conclusions

1. There is clear evidence from the practice of slave sale contracts for what was also one of the main points of Éva Jakab's study on the aedilician edict: obviously, the edict of the curule aediles was not an unconditional law forcing the parties to act according to all the details mentioned in the edict, but its clauses were meant to be used as a model, highly recommended by the aediles.[38]

2. In his article on the edict, Berthold Kupisch elaborated the idea of a relation between guarantee and price: a guarantee stipulation leads to a higher price, no guarantee stipulation to a lower price and shorter period for asserting any claims.[39] Though highly plausible, this idea cannot be proven by the contracts, probably because there are not enough contracts that could be compared concerning this point.

3.The divergence between contracts that state or even guarantee that the slave is not a fugitivus or erro and those that exclude such a guarantee, can be best explained by a different understanding of what it meant to guarantee that a slave is neither an erro nor a fugitivus. The meaning in the contracts from Puteoli, Alburnus Maior and Side obviously was that the slave had not run away or been noticed as a vagabond so far, i.e. before being sold, as it was also guaranteed that there were no signs for any disease or defect. This understanding is supported by a detail in T.Dacia 7: it is guaranteed that the boy who is sold as a slave "was handed over as being healthy, released from liability for theft and damage, and as not being a truant, fugitive or epileptic." So, the act of sale, this so-called "handing over" (cf. the Latin term traditum) limits the critical period on which the report about the slave's quality is based. This understanding also coincides with a comment by Papinianus, preserved in Dig. 21.1.54 (Papinianus 4 resp.): Actioni redhibitoriae non est locus, si mancipium bonis condicionibus emptum fugerit, quod ante non fugerat.[40]

Contracts like the one from Side from the year 142 CE (P.Turner 22) can be interpreted as a clear hint that vendors and notaries eventually tended to turn the information about the slave's quality, as requested by the aedilician edict, into a guarantee – not only concerning the formal validity of the contract but also concerning the slave's health, and (at least in some contracts) that he or she will not run away. It is quite easy to understand that such a guarantee could cause a severe problem for the vendor; at least, it meant a huge risk on his side. The contracts from Egypt from the first century CE clearly avoid this risk by stating that a flight or death of the sold slave is no longer in the responsibility of the vendor (BGU IV 1059) or by excluding such a responsibility or guarantee.

4. There are also slave sale contracts from Dacia and Herculaneum without a guarantee that the slave is not a truant or fugitive. Or, to express it as a question: What was the reason to furnish or exclude such a guarantee in contracts that were written during the same time and at the same place? Obviously, the answer has to be found in the age of the slaves at the time of the sale. As Table 1 attests, all the contracts from outside Egypt, drawn up between 47 and 151 CE, confirm the selling of boys or girls[41] – the oldest one is about twelve years old, whereas contracts without the relevant guarantee confirm the selling of adult slaves: in T.Hercul. 61 (May, 63 CE) it is a man (homo),[42] in T.Dacia 8 (October 4, 160 CE) a woman (mulier).

5. The contracts provide evidence that ancient slave merchandise was also a matter of "commercial advertising." Even the regulations of the aedilician edict were used for that. It obviously did really matter, who had the best offer, not only in quality (a healthy, skilled, useful, and trustworthy slave) but also concerning guarantees and price.

6. We have to presume that also in Graeco-Roman antiquity there was some kind of interaction between the practice of the law ("Rechtspraxis") and the practice of business or merchandise ("Geschäftspraxis"): the curule aediles regulated what was necessary in order to avoid forms of merchandise that were unjust towards one of the parties, and to leave to them the path to follow these regulations in practice. It was the aediles' strict order that the vendor has to inform the purchaser about everything that was about to affect the quality of the slave to be sold.[43] They did not regulate the manner in which this was carried out. And, actually, there is no need to tell any businessman that the best way to do that is through a written contract, but that other ways were valid as well. The curule aediles did not regulate what the vendor had to promise and guarantee, but they ordered the vendor to abide by all the promises he gave (dictum et promissum). It was completely up to him what promises and guarantees he would file, if he filed any at all.

7. As we see from the slave sale contracts, the regulations of the edict obviously motivated the slave vendors to guarantee that a slave did not suffer from any severe diseases, and was neither a fugitive nor a vagabond, instead of just informing the customer about a disease or defect that the slave might have. It is most reasonable to argue that the vendors did more than asked for by the edict because it was simply good for their business, especially from a long-term perspective.

8. Finally, this means that vendors and purchasers had some important (at least some implicit) influence on the legislation as it was they who proved in practice whether or not the regulations supported commercial dealings, and still kept these just and trustworthy for both sides, vendors and purchasers alike.