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('probation'; 'test'; 'evidence'; 'proof'.) [German version] I. Law In Roman law, probatio included, without clear distinction, the central phase in every civil trial: the hearing of the evidence as a whole, the issue of apportioning the burden of proof and, finally, the list of submissions of evidence. The hearing of evidence by the iudex ('judge') is scarcely treated in the juridical writings; it was not regarded as an issue of law. The apportioning of the burden of proof was probably not observed as strictly as it is today…

[German version] According to Gai. Inst. 4,42 adiudicatio is that part of the trial formula giving the judge legally operative powers. These were required in the three actions for partition ( familiae erciscundae, communi dividundo, finium regundorum), because they were used to divide the existing items of property among the parties, or in the case of the last-named action, to clarify the dividing line. For this purpose the judge could both allocate legal items relating to the law of property (property, mortgage, usufruct, etc.) a…

[German version] In criminal proceedings the sentencing of the accused (Cic. Verr. 2,75). In civil proceedings the condemnatio is according to Gai. Inst. 4,43 that part of the proceeding formula that grants a private judge in the context of the suit brought forward (  intentio ) and the statement of facts (  demonstratio ) the power to sentence or acquit ( qua iudici condemnandi absolvendive potestas permittitur). It is only required in payment suits. Gai. Inst. 4,48ff. further states that condemnatio relates to a sum of money ( condemnatio pecuniaria). This restriction (which was o…

[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…

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[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 ( …

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[German version] Literally probably (from secare, 'to divide') a neutral person independent of the parties. According to the late Classical Roman jurist Modestinus (3rd cent. AD), sequester is the person to whom several entrust an item that is the subject of a dispute (Dig. 50,16,110). Until this period, the parties ge…

[German version] with the meaning of ‘receive, obtain’ (cf. Dig. 50,16,71pr.) characterizes several juristically relevant processes: as accipere hereditatem for instance (Dig. 28,5,77) the actual receipt of a legacy; as accipere censum the acceptance of a ‘tax declaration’ from the person liable to tax (Dig. 50,4,1,2); as accipere iudicem in more ancient times the acceptance of a judge appointed by a magistrate, later replaced by the meaning of a judge agreed between the parties. The meaning ‘accept’ refers for instance to accipere legem the acceptance of a law by the people; accipere nomen the acceptance of an election candidate by the election leaders. Particularly controversial in the last century and a half has been the expression much used in the sources accipere iudicium: the argument has essentially been about the exact borderline with the corresponding terms of   editio actionis and   litis contestatio . It was particularly strongly marked…

[German version] The legis actio…

[German version] [1] Hasta, hastati In the Roman army of the middle Republic, the hasta served primarily a…

[German version] (‘Dispute announcement’) is a form of the Roman procedural opening that was in use for a relat…

[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 …

[German version] is derived from cognoscere and means an investigation or decision carried out when acting as a judge. In criminal proceedings, this term covers the investigation of a crime…

[German version] In a general legal sense, restitutio means 'restoration'. In the area of Roman criminal law, it refers to the full or partial revocation of a legally binding conviction, as a result of which the condemned is restored to his former status (cf. Cod. Iust 9,51). In Roman civil and civil action law, a distinction must be made between a material and a formal restitutio. In certain actions, the material restitutio is the desired outcome, thus above all in actions in rem such as the rei vindicatio (action for the restitution of goods by the owner): in …

[German version] The petition that determined the object of the dispute (which might have to be proven; Gai. Inst. 4,41) in the formula characteristic of the Roman formulary procedure (  formula ). In the case of a declaratory action, this formula is limited to the intentio (Gai. Inst. 4,44), while suits for obligations were differentiated depending on whether the object was a certum (i.e. a particular sum, object or quantity of goods) or an incertum (i.e. quidquid dare facere oportet, ‘everything that someone is required to pay’). In the latter case, the intentio was used to give prec…

[German version] [1] (rhetoric) v. Actio [1] (rhetoric) v. Actio [1] Paulus, Christoph Georg (Berlin) [German version] [2] (legal) Declaration (legal). Literally 'declaration', pronuntiatio in Roman law meant any ruling made by the judge on the matter at issue (e.g. Dig. 42,1,1). The narrower sense arose from the peculiarity of Roman procedural law in strictly permitting only a condemnatio pecuniaria ('pecuniary condemnation', i.e. sentence to payment of a monetary sum). Notwithstanding this, there were particular actions which cou…

[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…