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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…

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…

Hasta

(1,030 words)

Author(s): Campbell, J. Brian (Belfast) | Paulus, Christoph Georg (Berlin) | Siebert, Anne Viola (Hannover) | Salomone Gaggero, Eleonora (Genoa) | Barceló, Pedro (Potsdam) | Et al.
[German version] [1] Hasta, hastati In the Roman army of the middle Republic, the hasta served primarily as a thrust lance for close combat although it could also be thrown; it had a wooden shaft and an iron point. The hasta was adapted to the fighting style of the  phalanx, but it remained in use when, in the 4th cent. BC, the Romans adopted a more flexible set-up in maniples (  manipulus ). According to Livy (Liv. 8,8,5-13), whose account, however, is not without its problems, in 340 BC the Roman army consisted of three battle rows, the hastati, the principes and the triarii. The triarii were a…

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…

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…

Tempus utile

(147 words)

Author(s): Paulus, Christoph Georg (Berlin)
[German version] (literally: 'usable time'). In Roman law, a particular manner of calculating a time limit. Whereas in the case of a tempus continuum ('continuous period of time') the initial date and the expiry of the term are unalterably fixed, TU implies taking into account only those days on which the time can be used by the relevant party. Either the beginning of the term is made dependent on the first possible use and the term then proceeds as a continuum (e.g. praetorian lawsuits, Dig. 15,2,1 pr.), or the beginning is fixed and in the course of the term only those da…

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…
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