- Roman litigation
The system of Roman litigation passed through three stages over the years: until around 150 BC, the "Legis Actiones" system; from around 150 BC until around 342 AD, the formulary system; and from 342 AD onwards, the "cognitio" procedure.
Summons under the "legis actiones" system were conducted "in ius vocate", that is, by voice. The
plaintiffwould request, with reasons, that the defendantcome to court. If he failed to appear, the plaintiffcould call reasons and have him dragged to court. If the defendantcould not be brought to court, he would be regarded as "indefensus", and the plaintiffcould, with the authorization of the praetor, seize his property.
At the first stage of the case, a hearing took place before the
praetor, in order to agree the issue and appoint a judge. This was conducted through exchanges of ritual words, the three different types being known as the "sacramentum", "postulatio" and "condictio". All of these involved, essentially, statements of claim by both parties, and the laying down of a wager by the plaintiff. Then, a judgewas appointed who was agreeable to both parties, the praetormaking a decision in the event of a disagreement. Judges were chosen from a list called the "album iudicum", consisting of senators, and in the later Republic, men of equestrian rank.
judgehad been appointed, the full trial could begin. This was fairly informal compared to the preliminary hearing, and was supposed under the Twelve Tablesto take place in public (the Forum Romanumwas frequently used). While the witnesses could not be subpoenaed, the dishonorable status of "intestabilis" would be conferred on a witness who refused to appear. There were few rules of evidence (and both oral and written evidence was permitted, although the former was preferred), although the burden of prooflay upon the plaintiff. The trial consisted of alternating speeches by the two advocates, after which the judgegave his decision.
Unlike in modern legal system, victorious parties had to enforce the verdict of the court themselves. However, they were entitled to seize the
debtor, and imprison him until he repaid the debt. After sixty days of imprisonment, the creditorwas entitled to dismember the debtor or sell him into slavery, although after the Lex Poetelia of 326 BC, the creditor could take no action other than continued imprisonment of the debtor.
Due to the faults of the "legis actiones" system, namely its excessive formality, archaic nature, and limited effectiveness, a new system was introduced. This was known as the formulary system.
The formulary system was originally used by the peregrine
praetor(who was responsible for the affairs of foreigners in Rome) to deal with cases involving foreigners, which often involved substantial sums of money. This allowed the use of "formulae", standardized written pleadings, to speed up cases. This was soon, by popular demand, adopted by the urban praetorfor use by all Roman citizens.
Defendants were summoned under the formulary system in a similar manner to under the "legis actiones". The defendant was still summoned orally, but had an extra option; rather than immediately going to court, he could make a "vadimonium", or promise, to appear in court on a certain day, on pain of a pecuniary forfeit. Although the plaintiff could still physically drag his opponent to court, this was scarcely used. Instead, the plaintiff could be given permission by the praetor to take possession of the defendant's estate, with a possible right of sale.
Just like in the old "legis actiones" system, this took place before the
praetor. During the hearing, a formula was agreed on. It consisted of up to six parts: the "nominatio", "intentio", "condemnatio", "demonstratio", "exceptio", and "praescriptio".
This part appointed a judge, in a similar matter to before, with the plaintiff suggesting names from the official list until the defendant agreed. If there was no agreement, the praetor would decide. An example of a "nominatio" would be, "Let Claudius be judge."
This was the plaintiff's statement of claim, where he stated the allegation on which his claim was based. An example of an "intentio" could be, "If it appears that the property which is disputed belongs to Aulus Agerius at civil law,".
The "condemnatio" gave the judge authority to condemn the defendant to a certain sum or to absolve him. An example of a "condemnatio" could be, " [If it appears that he is guilty] , Condemn Numerius Negidius to Aulus Agerius for 200 "denarii"; otherwise absolve him."
The "demonstratio" was used only in unliquidated,
in personamclaims, and stated the facts out of which the claim arose.
Exceptio and replicatio
If the defendant wished to raise a specific defense (such as self-defence), he would do so in an "exceptio". However, if the plaintiff was desirous of refuting the defence, he could file a "replicatio", explaining why the defence was not valid. The defendant could then file another "exceptio", and so on. The last of these to be proved on the facts "won".
This somewhat legalistic clause limited the issue to the matter in hand, avoiding "litis contestatio", where the plaintiff was prevented from bringing another case against the same defendant on a similar issue.
The case could sometimes be settled entirely through the preliminary hearing. The plaintiff could challenge the defendant to take an
oathsupporting his case. If the defendant was willing to swear the oath, he won, and, if not, lost. However, he had a third option - he could tender the oath back to the plaintiff, who similarly won if he took the oath and lost if he did not (he could not return the oath to the defendant). Justinian had this to say about the taking of oaths:
While it may seem odd to a modern observer to decide a case merely through the taking of oaths, it is important to note that a solemn oath before the Gods was regarded by the Romans as a serious matter, and even a rogue would be unwilling to
perjurehimself in such a fashion, and the penalties for perjurywere severe.
Full trials under the formulary system were essentially the same as under "legis actiones".
While the creditor was still essentially responsible for executing the judgement, there was now a remedy he could look to. This was called "bonorum vendito". Thirty days after the judgement, the creditor would apply for an "actio iudicati", giving the debtor a last chance to pay. If he failed to meet the debt, the creditor could apply to the
praetorfor "missio in possessionem" ("sending into possession"). He would then publicise the bankruptcy, giving other creditors a chance to come forward, thirty days after which the creditors would meet to appoint an executor.
This executor would prepare an inventory of the debtor's estate, and then hold a public
auction, with the entire estate going to the bidder who was prepared to meet the greatest proportion of the debt. However, the debtor remained liable for any portion of the debt which was not met. The reason for this was probably that the "bonorum vendito" remedy could be used as a threat to encourage a debtor to pay up.
The cognitio system was introduced some time after the Republic was replaced by the Empire. The main philosophical difference between the cognitio systems and those that had gone before was that, whereas the previous two essentially consisted of the State providing a system under which the two parties could resolve disputes between themselves - the basis of the case was agreed, but the case was then handed over to a private judge, and no judgement in default was available. In the cognitio, however, the State basically resolved the entire case, in the same manner as our current systems.
As in modern legal systems, the
summonswas served upon the defendant by the court. No longer did the plaintiff have to physically drag the defendant to court. Instead, he would lodge a "libellus conventionis" (a statement of claim), which would be served on the defendant by a court official, who could arrest him if he failed to appear. If he was unable to be brought to court on three separate occasions, Judgement-in-default could be entered against him. This highlights the philosophical difference between the "cognitio" and earlier systems—whereas before a trial required the consent of both parties, it could now be imposed by the state.
In the cognitio system, the trial took place before a
magistrate, rather than a lay judge. The process tended to be less adversarialthan before, as the magistrate had sole control over the case, and could admit whatever evidence he pleased. Documentary evidence was now considered to be of vital importance (indeed, a rule was introduced to the effect that a document could not be defeated by oral testimony alone). The magistrate's decision was read out in court and given in writing to both parties. As he was not bound by a formula, the magistrate could hand down a more discretionary ruling than was possible before.
Whereas before the victor was responsible for enforcing payment himself, he could now ask the court
bailiffs to seize the defendant's property to be sold at auction.
Under the "cognitio" system, an
appealsprocedure was available for the parties. The appeals process was extremely complex, but essentially consisted of the progression of the case through higher and higher courts, possibly culminating in the Emperorhimself.
last = Borkowski & du Plessis
title = Textbook on Roman Law
publisher = Oxford University Press
date = 2005
isbn = 0-19-927607-2
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