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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…

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…

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…

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. …

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…

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…
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