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Pluspetitio

(647 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] (excessive claim, cf. Cod. Iust. 3,10) - or, more commonly, plus petere - is a figure of Roman law intimately related to the artful construction of the formula in the Roman formula procedure. The pluspetitio led to sanctions or reactions in procedural law, which could range from loss of a case to corrective action (as today with the award of legal costs) within a legal dispute. According to Gaius [2] (Inst. 4,53ff.; 68), classical Roman law of the 1st-3rd cents. AD distinguished between four manifestations of the pluspetitio: re, tempore, loco, causa (factual, temporal,…

Liquet

(148 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] In contrast to the right to have recourse to a court that is guaranteed by modern constitutional law, the judge in (Classical) Roman antiquity was allowed to declare that he considered himself unable to come to a decision: rem sibi non liquere (Gell. NA 14,2,25) when he could not condemn or acquit according to procedural formula ( formula ). If he swore an oath to this effect, the parties could have the same legal dispute heard by another judge. The same applied to an arbiter (Dig. 4,8,13,3) appointed by a private arbitration agreement and to c…

Replicatio

(119 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] As a counter-exception, the replicatio was the means in the Roman civil formula procedure for the claimant to rebut an exception ( exceptio ) of the respondent. The latter then had recourse to a duplicatio, the former then to a triplicatio, etc. All these objections were incorporated into the trial formula ( formula ) and thus constituted the dispute presentation debated and substantiated before the iudex . An example of the replicatio is shown in Dig. 44,2,9,1, where the claimant is enabled to reply to the objection of legal force to the effect that …

Addictus

(146 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] is the debtor in a process of legal action who, after being convicted, had not paid the sum owed within 30 days and had consequently been brought before the magistrate by the creditor by means of manus iniectio and had been handed over by the magistrate by   addicere to the creditor for enforcement. If the debtor did not pay or provide a vindex at the latest before the magistrate, the creditor could take the addictus home with him and, according to detailed terms in the Twelve Tables (3,3-5; Gell. NA 20,1,45), hold the man prisoner, albeit still as a free man. If the addictus was un…

Centumviri

(811 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The term centumviri (‘hundred men’) refers to a court whose existence, according to heavily disputed theory, probably goes back to the beginnings of the Republic; its proceedings are documented throughout the period, and it is only at its sittings that the ancient symbol of state sovereignty, the wooden lance ( hasta, Dig. 1,2,2,29) was displayed, Gai. Inst. 4,16; Cic. De or. 1,57,242; Top. 17,65. The court's composition is suggested by its name: from each of the 35   tribus , three men were chosen as members (giving 105 ‘men of the hundred’; see Fest. 47: ... et, licet quin…

Addicere

(248 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] means the affirming repetition of a formal contractual declaration by the magistrate. It is already attested as such by Gell. NA 17,2,10 for Twelve Tables proceedings. Macrob. Sat. 1,16,14 refers to do, dico, addico ( tria verba sollemnia) as the words probably ceremoniously and formally pronounced by the magistrate during the most important steps in conducting the case, which were, moreover, only permissible on dies fasti (Varro, Ling. 6,30). The magistrate's affirmation was probably the most constitutive law-creating act, occurring for instance in in iure cess…

Praeiudicium

(222 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] (lit. 'prior legal proceedings'). Already under Roman law, the fact that different law-courts had different jurisdictions could in certain circumstances prevent the final resolution of a case until the legal question at issue had been clarified by the competent court. Examples of such questions might include the allocation of inheritances, the ownership of a piece of land or the existence of a capital offence. There was, however, no general precedence of the iudicia publica ( iudicium ) over actiones privatae. To resolve the tensions between the as yet unres…

Confessio

(443 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] Literally a confession, but in the modern sense also an acknowledgement. It led immediately to the enforcement proceeding instead of a sentence according to the principle that the confessing party should be considered as having been sentenced: confessus pro iudicato habetur (est) (Dig. 42,2,1; 3; 6; Cod. Iust. 7,59,1). However, there were exceptions: 1) In criminal proceedings a defendant confessing to certain grave crimes (e.g., crimen laesae maiestatis: the most famous case being Jesus before Pilate, Mk 15,2ff.) was treated as sentenced. All th…

Adsertor

(90 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] is a free citizen who pleads in court the case, in particular the liberation, of a slave, who is incapable of being a party to a lawsuit: as plaintiff in the vindicatio in libertatem including the manumissio vindicta, as defendant in the vindicatio in servitutem. On the possibilities of abuse in liberation cases Liv. 3,44 ff. Following preceding relaxation, Justinian ultimately declared slaves capable of acting in liberation cases (Cod. Iust. 7,17).  Vindicatio;  Manumissio Paulus, Christoph Georg (Berlin) Bibliography E. Ferenczy, in: Studi Donatuti, 1973,…

Arbiter

(343 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] seems to have originally meant the one who goes there ( ad baetere), and therefore refers to the person who rules in a dispute by looking closely at it in contrast to the iudex judging purely according to a petition. An arbitrator of this kind, with knowledge of the facts, was especially necessary in actions for partition, which instead of being aimed at a conviction or acquittal were aimed at a legally operative allocation (  adiudicatio ). However, this distinguishing feature between arbiter and iudex was already becoming increasingly vague in the law of the Tw…

Altercatio

(167 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] is an argument and interchange which can take place in the Senate or in judicial (criminal or civil) proceedings. In the latter case altercatio stands in contrast to the self-contained lecture oratio continua regularly given at the beginning of a hearing by the counsel of both parties. As proceedings progressed they repeatedly gave rise to debate, due to evidence recorded or other findings, on the status of the dispute and the legal situation; it took place in the form of an altercatio, shown as an example in Dig. 28,4,3. Oratio like altercatio was the field of action f…

Aestimatio litis

(192 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The principle of sentencing to a fine associated with formulary procedure (Gai. Inst. 4,48) made it necessary in civil procedure for all actions not aimed at a fixed sum to be expressed in money value. Both process and result of the estimate required for this are called aestimatio litis.; it was carried out by the judge, or sometimes by the plaintiff ( iusiurandum in litem, estimate under oath of the amount involved). If the defendant refused to meet his duty of payment in kind, but instead paid the sum of the fine, the plaintiff finally lost …

Formula

(325 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The written formula is the essential component of the type of trial which replaced the   legis actio procedure; by means of the lex Aebutia, 2nd cent. BC, as well as the two leges Iuliae, 17 BC) and which consequently is generally described as a formula trial. Despite a slow development, this classical procedural type is distinguished from its predecessor by having far greater flexibility and by being more adaptable to individual cases in the late Republic and the Principate. The text of the suit was no longer ceremonial and…

Vocatio in ius

(355 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] In Roman law, the 'call' (in the sense of summons) to stand trial. The VII addressed the problem, fundamental in every jurisdiction (but most particularly at early stages of development), of how to bring an accused person before the court: as long as no direct compulsion is available or permitted, sanctions with at least indirect effect must accompany the summons. Both variants are found in the development of Roman law: for the oldest type of trial, the legis actio (action under the (XII-Table) law), the Twelve Tables (tab. 1,1 ff.; Tabulae duodecim, c.450 BC) prescribes…

Mors litis

(172 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] (literally: ‘death of a lawsuit’). According to Gai. Inst. 4,104 a means introduced by the l. Iulia iudiciorum privatorum specially for the iudicium legitimum ( iudicium ), to limit the duration of lawsuits. Whereas all other lawsuits were limited by the period in office of the magistrates who appointed judges, ML was what happened when after 18 months there had been no judgment. From the lex Irnitana (ch. 91, l.2) it followed that this regulation was transferred - evidently by pretending that the municipal process was identical to the iudicium legitimum - also to this…

Antestatio

(93 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] is the formalised notice of a witness, associated with a tweak of the ear (Plin. HN 11,103), before the permitted use of force by the plaintiff against a defendant who does not comply with the in ius vocatio and does not offer any vindex. Antestatio is attested for the Twelve Tables (1. 1); it became superfluous, and yet was apparently retained, on introduction of the standard procedural   litis denuntiatio . -- Antestatus is a mancipatio witness, CIL 6.10239.  Vocatio in ius;  Denuntiatio Paulus, Christoph Georg (Berlin) Bibliography Wieacker, RRG, 448.

Comperendinatio

(184 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] describes according to Gai. Inst. 4,15 an agreement of the parties to appear on the day after next before a iudex (Fest. 355,1; Prob. 4,9: in diem tertium sive perendinum; for Roman calculations of court dates cf. Gell. NA 10,24,9), as had already been provided for in the Twelve Tables. It did not require the form of a stipulation because the consequences of missing it were considered sufficient as a sanction. How the transition from the procedure in iure to apud iudicem specifically came about in the formular procedure is unclear, because the comperendinatio is no longer…

Postulatio

(214 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] is occasionally used generally for a demand or a request in Roman law as a synonym of petitio . For a Roman formula lawsuit in the 3rd cent. AD (in the context of the edict title de postulando; cf. also Cod. Iust. 2,6) Ulpian defines postulare as desiderium suum vel amici sui in iure ... exponere: vel alterius desiderio contradicere ('to expound to the court one's own or a friend's request or to contradict somebody else's request', Dig. 3,1,1,2). By a postulatio actionis a plaintiff requested a praetor to allow the action on which he had agreed with the accused by way of an editio

Litis denuntiatio

(279 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] (‘Dispute announcement’) is a form of the Roman procedural opening that was in use for a relatively short time (essentially in the 4th cent. AD) but then stopped being practised because of its ponderousness. Its characteristic feature is that the litis denuntiatio (LD) addressed by the plaintiff to the defendant in written form is served upon the latter not directly and immediately but on the basis of a statement of claim application ( postulatio simplex) with the permission or even with the help of the court. This form of opening therefore represents a…

Rescript procedure

(222 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] This type of Roman trial developed from the reign of Hadrian (2nd cent. AD) as a special form of the civil inquiry of cognizance ( cognitio ). Its peculiarity consisted in the fact that the decisive legal issue (i.e. not also the correctness of the facts) was clarified in advance for the specific case by the princeps, by means of a written response ( rescriptum ) to the written enquiry of the party who would henceforth be the plaintiff, with the consequence that henceforth all that required examination was the correctness of …
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