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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…

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.
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