Aulus Gellius 4.2
Translation copyright 2000 Neil W. Bernstein; all rights reserved.
On the difference between the words disease [morbus] and defect [vitium], and what significance these words possess in the edict of the aediles. Also, whether eunuchs and sterile women can be returned, together with diverse opinions on this matter.
- The section of the curule aediles' edict that describes the sale of slaves reads as follows:
Take care to write a placard for each slave so that it can be properly understood what kind of disease or defect each has, which ones are runaways or vagrants or implicated in crime.
- The older jurists, furthermore, inquired as to what could be properly called a "sick" or a "defective" slave, and how much a "disease" differred from a "defect".
- In his book On the edict of the curule aediles, Caelius Sabinus (1) cites Labeo for the meaning of disease. Labeo defines it in the following words:
Disease is a unnatural state of the body that makes its functioning worse.
- But he says that "disease" sometimes attacks the whole body, at other times only a part of it. A "disease" of the entire body would be, for example, phthisis or fever; a disease of a part of the body would be blindness or lameness of the feet.
- He says:
Stutterers and stammerers are more defective than diseased, and a horse inclined to bite or kick is defective, not diseased. But whoever has a disease is also defective. The reverse, however, is not true; for it is possible that a person who is defective is not diseased. For this reason, the fair ruling when the case concerns a diseased man will be: 'his price will be reduced by so much on account of this defect.'
- There is also a question concerning eunuchs. Is it against the aediles' edict to sell a eunuch if the buyer is unaware of the slave's condition?
- They say that Labeo replied that the eunuch can be returned as if he were diseased.
- He also wrote that an action could be brought following the aediles' edict if sterile female swine came up for sale.
- They say furthermore that Trebatius contradicted Labeo concerning sterile women, if the sterility were present from birth.
- For although Labeo had thought that the woman could be returned on the grounds of ill health, they say that Trebatius denied that an action could be brought following the edict, if this woman were sterile from birth as the result of a congenital condition. But if her health had declined and a defect arose from this condition, resulting in her inability to conceive children, then she would be judged unhealthy. This would furnish grounds for her return.
- There is also a dispute concerning myopic slaves, who are called "night-blind" [luscitiosus ] in Latin. Some say that they should be returned in all cases; others object, except in cases where the defect was contracted as the result of disease.
- Servius Sulpicius Rufus (2) said that a slave who is missing a tooth could be returned, but Labeo denied that this was a cause for return. He says:
For many people are missing a tooth, but the majority are not diseased as the result of this; and it is thoroughly absurd to say that people are not born healthy just because infants' teeth are not born at the same time as they are.
- We should also not pass over that which is written in the books of the older legal experts: that a "disease" and a "defect" are different, because a "defect" is forever, but a "disease" has an onset and a remission.
- But if this is the case, then neither a blind man nor a eunuch is diseased -- against the opinion of Labeo, which I cited above.
- I quote here the words of Masurius Sabinus from the second book of his Civil Law:
Madmen, mutes, those whose limbs are mutilated or wounded, or hinder them so that they are less fit, are diseased. He who by nature sees less far is as healthy as he who runs too slowly.
- Consul AD 69; cf. Tacitus, Histories 1.77.
- Consul 51 BC; a famous legal scholar and friend of Cicero.
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