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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…

Procedural law

(3,600 words)

Author(s): Hengstl, Joachim (Marburg/Lahn) | Witthuhn, Orell (Marburg) | Paulus, Christoph Georg (Berlin)
[German version] I. Alter Orient Even in the cuneiform laws (Cuneiform, legal texts in) going back to the middle of the 3rd millennium, it is impossible to discern an epoch in which it was true that virtually only the strong were able to claim their rights [7]. On the basis of Old Babylonian letters and some stipulations of the Codex Ḫammurapi it is certainly the case that self-help played a legally recognized role [8], and modulated self-help is furthermore mooted for Hittite law [5]. Widespread use of the word 'judge' (DI.KU5/ dajjānum) from the Old Akkadian period (24th/22nd cents.…

Probatio

(1,226 words)

Author(s): Paulus, Christoph Georg (Berlin) | Baumhauer, Otto A. (Bremen)
('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…

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…

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 …

Deductio

(345 words)

Author(s): Paulus, Christoph Georg (Berlin) | Elvers, Karl-Ludwig (Bochum)
[German version] [1] Legal term There are many different senses of deductio in specialized legal language: in civil case-law the expression in iudicium deducere usually indicates the transition of the dispute to the judgement stage, and so approximately corresponds to the modern concept of pendency. Deductio in domum is the ceremonial introduction of a wife into her husband's house (Dig. 23,2,5). A further frequent use of deductio is to denote the ‘deduction’ of specific components of a debt owed to a provider of services: for example the deduction of costs (D…

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…

Forum

(8,477 words)

Author(s): Höcker, Christoph (Kissing) | Paulus, Christoph Georg (Berlin) | Hurschmann, Rolf (Hamburg) | Uggeri, Giovanni (Florence) | Olshausen, Eckart (Stuttgart)
I. Archaeology and urban studies [German version] A. Definition and Function Latin term for market, market place; rarely also the forecourt of a tomb (in the meaning of Greek drómos, e.g. Cic. Leg. 2,61) or part of a wine press (Varro, Rust. 1,54; Columella 11,2,71). As the mercantile and administrative centre of a Roman city ( Town/City), the forum, which took the form of a large open space framed by buildings, was essentially the equivalent of the Greek  agora. A location at the intersection of the   decumanus and   cardo in the city centre is the rule in …

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…
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