Ne Serva Prostituatur:
Restrictive Covenants in the Sale of Slaves
Roman law recognized certain restrictive covenants in agreements for the sale of slaves, covenants that directed a certain disposition of the slave on the part of the buyer but that, when violated, did not void the sale.1 Although they played a relatively minor role in Roman private law, these covenants have important implications for public policy and for the relationship of policy and the private law system. This is especially true of the restrictive covenant that forbade the buyer to prostitute the slave: ne serva prostituatur.2
An analysis of the content of these covenants and their treatment by both emperors and jurists reaffirms the accuracy of the distinction traditionally drawn in the modern literature between those covenants that were construed to benefit the original vendor and those that were understood to benefit the slave. But while scholars tend, for the most part, to view the legal regimes on these covenants, especially ne serva, as fairly static in nature, I argue that a fundamental shift oc
This chapter is a revised version of my paper “Ne Serva Prostituatur: Restrictive Covenants in the Sale of Slaves,” published in SZ 107 (1990): 315–353.
1 The latest summary is in Kaser, “Beschränkungen” (1977/1986) 185–186. See also Knütel, Sti-
pulatio (1976) 357–361; and esp. Kaser, RP 12 (1971) 286, 293, 466, 562; 22 (1975) 339, 394; RZ
(1966) 355, 361, 366.
2 For discrete treatment, see Sciascia, “Escrava” (1952/1956) and now Sicari, Prostituzione (1991).
For the sake of completeness, I mention Sokala, “Effectiveness” (1993 ).
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Publication information: Book title: Prostitution, Sexuality, and the Law in Ancient Rome. Contributors: Thomas A. J. McGinn - Author. Publisher: Oxford University Press. Place of publication: New York. Publication year: 2003. Page number: 288.
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