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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,…

Testimonium

(854 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The attestation of a legal transaction (for its validity) or another action (as evidence in a trial) according to Roman law. The enforceability of legal positions has always been dependent on the possibility of proving the conditions for their coming into existence. The importance of witnesses for criminal proceedings is evident; however, it was no less so for civil trials. Although documentary evidence surpassed the evidence of witnesses for the latter branch of law toward the en…

Manus iniectio

(363 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] ‘Laying on hand’ occurs twice in connection with the most ancient type of Roman trial, the legis actio : first, anyone wishing to accuse another may, if the defendant refuses to attend, force him to appear before the praetor by manus iniectio, i.e. the use of force. The defendant may escape only by means of a vindex (a person who guarantees the appearance of the defendant at a fixed later date; see lex XII tab. 1-4). The second context for this a measure of compulsion - also involving a vindex - was that of the enforcement of a confirmed debt ( legis actio per manus iniectionem, lex X…

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…

Denuntiatio

(292 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] can in a legal context be any communication made to another person, orally or in writing, in pursuit of a legal objective. The person making the declaration and the person receiving it do not have to be private individuals but can also be office-holders or even the curule aediles' edict (Dig. 21,1,37). If such a communication is addressed to someone who is absent, it is termed detestatio (Dig. 50,39,2). The denuntiatio can have an informative or communicative character, as for example the requisite (in late antiquity, threefold) notification of a pr…

Arbitration

(410 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] Arbitration, unlike criminal and civil jurisdiction, which operate with the force of the state, is invoked voluntarily by the disputing parties. It has neither been proven nor completely refuted that because of this lack of state influence arbitration represents the beginning of all jurisdiction (thus for Rome esp. [1]). In Roman sources in any case arbitration has an independent position alongside all three types of state trial (  ordo). There was also arbitration already in Greece (see   diaitētai [1]). The Roman compromissum (agreement of the parties to subm…

Iudicium

(1,188 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] A central concept of Roman  procedural law, it appears in several different senses: in the wider sense for the whole process, in the narrower sense (esp. in the context of the legis actio and formulary procedure which are divided into different procedural stages) for the last stage which took place before the judge (  iudex ). Upon transition to the cognitio procedure (  cognitio ) and concomitant elimination of the procedural stages, iudicium then only referred to the whole process for which the word processus has been in habitual usage since the MA. Additional …

Demonstratio

(186 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] In general civil law the specific designation of a thing or person (Dig. 6,1,6). This term lies at the origin of the interpretative formula falsa demonstratio non nocet (‘a wrong expression does not affect the matter's validity’), which was used by the Romans mainly when interpreting a will (Inst. Ius. 2,20,30) and which is still current today. In the context of civil proceedings demonstratio, set out at the beginning of a large number of legal arguments, refers to the concise exposition of the circumstances of the disputed issue (Gai. Inst. …

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

Satisdatio

(197 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] In Roman law, satisdatio (the giving of a security) constituted a special form of the cautio (warranty). Anyone obliged to the satisdatio had to provide a guarantor at regular intervals (Dig. 2,8,1). The guarantor had to be idoneus (“fit”, i.e. solvent); this could be established by an arbiter (a judge with administrative discretion) (Dig. 2,8,9 and 10 pr). It was also a fundamental requirement that the bondsman was of the same legal status as the party furnishing security. Cases in which a satisdatio could be arranged by the praetor or where it was even prescribed ipso ju…

Abiuratio

(185 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] A lawsuit brought before the praetor concerning credited money or some other res certa could be concluded before the   litis contestatio if the plaintiff made the defendant take an oath on the validity of the claim involved in the suit. The defendant hereupon had the choice of paying or denying the claim; the latter is the abiuratio (Isid. Orig. 5,26,21). If he abjured, the plaintiff's   actio was denied; sometimes instead of this the defendant was granted an exceptio iurisiurandi (Dig. 12,2,9 pr.), if, for instance, the existence and content of the oath gave…

Publicatio bonorum

(236 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The PB (confiscation of goods) was practiced at Rome as a consequence of a conviction from time immemorial (cf. Liv. 2,5,2; 2,8,2; 3,55,7). The PB originally surrendered the culprit and his assets as a consecratio (dedication) to the deity in the sense of a proscription (probably destruction of belongings, perhaps also transfer to temple property). In the later Republican period (probably from 169 BC, cf. Liv. 43,16,10), it developed into a (mandatory) supplementary punishment in case of convict…

Appellatio

(604 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] A term adopted into contemporary languages in the meaning of ‘appeal against a sentence’, appellatio in Rome originally referred only to prevention by magisterial decree. An intercessory action of this kind connects the areas of meaning of appellatio and   provocatio , (Cic. Quinct. 65; Liv. 3,563; Plin. HN 6,90). They caused immediate and irrevocable discontinuance of the current process or action as well as, in some cases, referral to the person invoked or a new decision by him. In probably the most …

Iudicatum

(323 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] Either the payment order pronounced in a civil law trial (Dig. 2,12,6: iudicatum facere vel solvere), or the entire judgement; the latter primarily in the expression res iudicata; e.g. Dig. 42,1,1: res iudicata dicitur, quae finem controversiarum pronuntiatione iudicis accipit: quod vel condemnatione vel absolutione contingit (‘ res iudicata is the end of the proceeding that has been brought about by the judgement, which is either sentencing or acquittal’). In the masculine form iudicatus means a sentenced person, e.g. Dig. 42,2,1: confessus pro iudicato est (‘wh…

Agerius

(88 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] In most of the lawsuit formulae reported by Gaius (but also by others, e.g. Dig. 46,4,18,1) the blanket name Aulus Agerius (= is qui agit), stands for the plaintiff, where the actual name is to be inserted in the specific case (expressly the l. Rubria: CIL I 205), while the defendant is called Numerius Negidius (= is a quo numeratio postulatur et qui negat). However, all four names can be applicable in individual cases.  Formula Paulus, Christoph Georg (Berlin) Bibliography W. Kunkel, Röm. Rechtsgesch., 91980, 84.

Iudex

(474 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] Literally, ‘one who dispenses justice’, i.e. ‘judge’. Usually, this means the individual judge in Roman law ( iudex privatus; iudex unus) who in a separate stage of the proceeding that usually ended a legal dispute ( apud iudicem) conducts the deliberation of the evidence and passes a judgement roughly suggested by the  praetor in the first proceeding stage ( in iure,   ius ). While the term iudex was already exchangeable with that of   arbiter at the time of the Law of the Twelve Tables (5th cent. BC), the   recuperatores and   centumviri constitute sep…

Recuperatores

(277 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] From re-capere, literally 'to obtain back', for which purpose the recuperatores were originally appointed in support of Roman citizens within the framework of international legal relationships (Fest. 342 L.: reciperatio): they were meant to help the citizens get back what they had lost (probably above all in war) or had had illegally taken away from them. They then also came to a decision in the repetundae process ( repetundarum crimen ), in which it was a matter of the return of goods which the Roman magistrates had extorted in o…

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…

Adiudicatio

(122 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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…

Condemnatio

(256 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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…

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…

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…

Furtum tabularum

(103 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] A criminal offence that corresponds with modern obstruction of evidence and so implies a more or less definite obstruction of evidence in Roman civil procedure. Tabulae are written notes that served, e.g., to safeguard evidence; as such they belong to the evidence classified by Quintilian ( instrumenta, Inst. 5,5,1ff.). Paulus, Christoph Georg (Berlin) Bibliography G. Klingenberg, Das Beweisproblem beim Urkundendiebstahl, in: ZRG 96, 1979, 229-257 C. Paulus, Die Beweisvereitelung in der Struktur des dt. Zivilprozesses, in: Archiv für die civil…

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…

Advocatus

(520 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The advocatus, as ‘one called on’, developed from adviser to the ultimate legal adviser in the late classical period (around AD 200). At first advocatus referred to a usually influential person, who supported someone as an act of friendship in court proceedings (both in criminal and -- notorious for being more boring, Cic. Opt. Gen. 9 f. -- civil law) -- simply by his presence or by his legal knowledge (general knowledge acquired through his training and education); cf. Ps.-Asc. on Cic. in Caec. 11. Here he is distinguished (at least theoretically) from the patronus, who …

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…

Iurisdictio

(596 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] Literally ‘speaking law’. Where iurisdictio was split into various stages of procedure (in particular in iure, apud iudicem), it means the sovereign powers conferred on a Roman court magistrate for observing judicial practice. This term was originally used for private judicial practice, but in the 2nd cent. AD it was also extended to criminal judicial practice and to the procedure of cognition (  cognitio ), in the context of which iurisdictio describes the official judicial competences as a whole - in other words also the authority to pass judgemen…

Sequester

(204 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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 generally deposited the item whose replevy they disputed voluntarily and out of court. In occasional cases, e.g. Dig. 43,30,3,6 (custody of a child), however, the praetor could also make an official order for…

Accipere

(244 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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…

Legis actio

(600 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] The legis actio (LA) was the earliest form of Roman civil procedure and, therefore, characterized by considerable formality. It owed its name to a law from which the suit received its immutability but which Gaius (Inst. 4,11) was already at a loss to explain entirely. The formalities that had to be observed in this type of proceeding, which was reserved for Roman citizens and included precise repetition of certain formulas as well as correctly performing the required actions (Gai. I…

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…

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…

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,…

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 …

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 …

Cognitio

(374 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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 including the establishment of the facts (Dig. 47,20,3 pr.), as well as the interrogation of a person in remand (Dig. 1,16,6 pr.). In civil proceedings, causae cognito usually means a summary examination by a magistrate; as a form of proceedings, the cognito changes from an extraordinary type of proceedings ( extraordinaria c.) to the exclusive type of trial (so-called cognition trial/pro…

Restitutio

(499 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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 …

Intentio

(325 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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…

Pronuntiatio

(160 words)

Author(s): Paulus, Christoph Georg (Berlin)
[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…

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…

Reiectio

(63 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] Reiectio civitatis refers to the relinquishment of civil rights, reiectio iudicis to the right of the parties in a civil or criminal suit to reject a certain number of judges who would be considered for deciding the case according to the list of judges, . Paulus, Christoph Georg (Berlin) Bibliography M. Kaser, K. Hackl, Das römische Zivilprozeßrecht, 21996, 195, 198.

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…
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