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[p. 321] congenital they say that Trebatius gave a ruling opposed to that of Labeo. For while Labeo thought 1 that she could be returned as unsound, they quote Trebatius as declaring 2 that no action could be taken on the basis of the edict, if the woman had been born barren. But if her health had failed, and in consequence such a defect had resulted that she could not conceive, in that case she appeared to be unsound and there was ground for returning her. With regard to a short-sighted person too, one whom we call in Latin luscitiosus, there is disagreement; for some maintain that such a person should be returned in all cases, while others on the contrary hold that he can be returned only if that defect was the result of disease. Servius indeed ruled 3 that one who lacked a tooth could be returned, but Labeo said 4 that such a defect was not sufficient ground for a return: “For,” says he,“many men lack some one tooth, and most of them are no more diseased on that account, and it would be altogether absurd to say that men are not born sound, because infants come into the world unprovided with teeth.”

I must not omit to say that this also is stated in the works of the early jurists, 5 that the difference between a disease and a defect is that the latter is lasting, while the former comes and goes. But if this be so, contrary to the opinion of Labeo, which I quoted above, neither a blind man nor a eunuch is diseased.

I have added a passage from the second book of Masurius Sabinus On Civil Law.: 6 “A madman or a mute, or one who has a broken or crippled limb, or any defect which impairs his usefulness, is ”

1 Fr. 28; Huschke; 3, Bremer.

2 Fr. 10, Huschke; Resp. 24. Bremer.

3 Fr. 17, Huschke; Resp. 108, Bremer.

4 Fr. 29, Huschke; 2, Bremer.

5 Cael. Sab. ad. ed. fr. 1 ff., Bremer.

6 Fr. . 5 Huschke; 173 ff., Bremer.

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