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Defensor

(450 words)

Author(s): Paulus, Christoph Georg (Berlin) | Gizewski, Christian (Berlin)
[German version] I. In civil law Defensor is not a technical legal term for the defence counsel (but probably nevertheless thus in Quint. Inst. 5,3,13), but rather had various meanings, especially as the sponsor of the defendant primarily in a civil case, and here particularly of the absent defendant ( indefensus). To take on such a defence was the duty of a friend (Dig. 4,6,22 pr.). Termed defensor civitatis, he is also the judicial representative of corporations ( universitates, Dig. 3,4,1,3), above all of statutory public bodies (e.g. communities, provinces; cf. CIL X,1201 and passim)…

Editio

(730 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The term editio is derived from the verb edere (‘to present, to show, to announce’) and has several meanings within the legal realm: (1) The editio actionis (Dig. 2,13) refers to the announcement required, in order for a trial to be sub judice in the formulary procedure, from the plaintiff towards the defendant, stating the type of charge(-formula) the plaintiff intends to initiate against the defendant. As long as the defendant accepts the formula ( accipere iudicium), the   litis contestatio (attestation of conflict) is established. For a…

Sententia

(465 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] [1] Aphorism, v. Gnome [1] II A; Proverbs Aphorism, v. Gnome [1] II A; Proverbs Paulus, Christoph Georg (Berlin) [German version] [2] Legal verdict Literally etymologically derived from the root sin, the sense of something uttered; in Roman legal terminology, e.g. the sense of a private legal action (cf. e.g. Dig. 28,1,1 on a testament) or a law (cf. Dig. 23,2,44,5). Sententia in particular meant the verdict, in civil or criminal law, delivered by a judge ( iudex , arbiter ). In this sense, sententia was already used for the process of the legis actio

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…

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 …

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…

Ordo

(1,047 words)

Author(s): Paulus, Christoph Georg (Berlin) | Galsterer, Hartmut (Bonn) | Le Bohec, Yann (Lyon) | Heimgartner, Martin (Halle)
in Latin referred both to an order (e.g. the marching order or that of a legal process) as well as to groups or corporations, into which several or many persons were organized (also in the plural ordines), e.g. the Roman equites ( ordo equester). [German version] I. Procedural law In a procedural context the term ordo is traditionally used in the composition of the ' ordo iudiciorum' (Cod. Iust. 7,45,4). It signified the proper types of legal procedure (cf. still today: 'proper' jurisdiction) both of the formulary procedure ( formula ) as well as of the actions at law proceedings ( legis actio

Causidicus

(199 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] A court orator who appears in court as a champion of a party. Whilst Cic. De or. 1,202 uses the term in an obviously derogatory sense as being distinct from a true orator, and whilst a similar evaluation is evident in Gai. Dig. 1,2,1 ( causas dicentibus), causidicus is later applied in inscriptions (CIL 5,5894) and constitutions as a neutral vocational title alongside (Cod. Iust. 2,6,6) or identical (Cod. Theod. 2,10,5) to   advocatus . As such, a causidicus belonged to the state controlled professional association (Cod. Iust. 2,7,11, 1) of orators appearin…

Vadimonium

(205 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] ( surety, bail). A legal transaction agreed in a stipulatio , by which one party in a Roman formulary procedure (Procedural law IV.) commits itself to appear at a certain location in order to enable legal proceedings to take place. This self-committal replaced the practice of providing guarantors ( vades) as had been the practice in the legis actio . A distinction was made between different kinds of vadimonium. The voluntary summoning vadimonium consisted of the promise (regularly sanctioned by fines) to appear near the law court for a final attempt a…

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,…

Edictum

(1,697 words)

Author(s): Willvonseder, Reinhard (Vienna) | Paulus, Christoph Georg (Berlin) | Noethlichs, Karl Leo (Aachen) | Schiemann, Gottfried (Tübingen)
[German version] [1] Public announcement by magistrates Edictum (from edicere) is a binding public announcement by Roman office bearers (  magistratus ), which presented either concrete orders or a ‘governmental agenda’ [1. 58] for the coming term of office. The word suggests an originally oral announcement [2. 178], but the historically documented form is a recording on an   album (‘white wooden plate’) at the magistrate's office. Literary tradition refers to edicts by   consules ,   aediles ,   praetores , provincial governors, tribuni plebis (  tribunus ),   censores

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…

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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