The Edict of the Curule Aediles
In their capacity as magistrates of the city, the curule aediles were in charge of supervising the markets. What remains of their edicts45 goes back at least to the first half of the second century BC and is known through citations preserved in the Digest (D.
21.1, De aedilicio edicto et redhibitione et quanti minoris) and the work of the second-century AD antiquarian Aulus Gellius.46 These cover two topics: the sale of slaves (mancipia), and the sale of animals (iumenta, ferae). The edict stipulates (i) that buyers of defective slaves will be granted a remedy for rescission (actio redhibitoria) if the seller has concealed a specific defect, whether or not he was aware of it; and (ii) that a remedy for diminution of the price (actio aestimatoria or quanti minoris) will be available to buyers cheated of what was owed to them, including qualities advertised that turn out to be lacking. The former kind of claim was available for 60 days or 6 months; the latter for 47a year.
The aedilician edict was traditional: aediles were in office for one year only and usually they did not have the legal training necessary to be innovative. Like their better-known senior colleagues, the praetors, aediles tended to borrow most or all of their edicts from their predecessors. In time this resulted in a rather static document, eventually codified by Salvius Iulianus in the age of Hadrian, perhaps as an appendix to the praetorian edict (edictum perpetuum). We do not know when the aedilician edict ceased to be modified, but some first-century AD documentary evidence suggests that it was still viewed as dynamic under Nero, if not later.48
The content of the aedilician edict is mostly lost, perhaps due to its eventual merging with the praetorian edict.
However, the reconstructed text gives several examples of how a slave may be defective. The aediles are said to have done everything possible to avoid ambiguity,49 but there was ample room for elaboration. For all its flexibility and pragmatism, edictal law would be inadequate without interpretation by the jurists. Faced with provisions phrased briefly and of general scope, over several centuries the jurists took on the task of adjusting these provisions to the requirements of social and economic life within a logical framework. Title 21. i of the Digest includes 62 excerpts from classical juristic writings on the subject. The earliest authority quoted in them is Cato (presumably the Elder),50 followed by several republican jurists. It provides valuable evidence about ancient slavery and the slave trade. The late republican jurist C. Trebatius Testa, for instance, downplayed bad breath as the result of poor oral hygiene, a condition that Apuleius could have treated adequately two centuries later.51face=Arial> The Flavian jurist Sextus Pedius discusses the case of the bed-wetter and distinguishes between slaves suffering from a bladder condition and those who are too drunk or too lazy to get up at night.52 Mental defects are taken seriously: slaves hooked on games or art works are considered defective by the late second-century AD jurist Venuleius Saturninus.53 At stake were the smooth running of the slave trade, consumer protection, and the expected productivity of slave labour.The animal trade presented similar problems but seemingly triggered less discussion on the part of the jurists54 or less interest on the part of the compilers: dangerous animals, including dogs, should be kept away or chained, so that they do not attack people, thus causing damage calling for monetary penalties. Animals should be sold with the trappings (ornamenta) they wore at the time of sale, lest the sale be rescinded or a diminution of the price be granted.
Interestingly, the aediles consider sales (and returns) in bulk, for instance for a pair of mules. This applies to slaves as well, be it a company of actors or simply siblings.55Diminution of the price could be obtained through the actio quanti minoris/aestimatoria, which the aediles mentioned only in connection with animals,56 but which the jurists showed to apply to slaves as well.57 This is typical of the work of classical jurists. We know of provisions dealing with partnerships of slave dealers (societates venaliciariorum),58 the castration of young slaves,59 and the definition of trappings (ornamenta). 0 Consumer protection, however, was not limited to the sale of slaves or animals, at least by Diocletian’s time.61 Besides, Ulpian points out that the aedilician edict applies to sales only and not to other categories of contract such as hire and lease (locatio conductio), because such contracts were never under aedilician jurisdiction or - and the introduction of an alternative explanation would be telling if the whole passage were not interpolated - because the contracts are different.62
Although the aediles were in charge of supervising local markets and their edicts were recognized not only in Rome but also in the rest of Italy and apparently across the empire by the second century AD,63 the scope of aedilician law was dwarfed by praetorian law. This is confirmed by the fact that few classical jurists are known to have commented on the aedilician edict: Ofilius and possibly Labeo in the late republican and Augustan periods, Caelius Sabinus and Sextus Pedius in the first century AD, Pomponius and Gaius in the second, Paul and Ulpian in the early third. It is likely that the aedilician edict eventually became an appendix to the praetorian edict, since the curule aediles’ competences were progressively absorbed by other magistrates and imperial officials.64
7.