EXTRA-JUDICIAL ACTS

In both of the instances just discussed, the course of proceedings, and the role of the documents in those proceedings, have been deduced from the presence of a promise to appear (vadimonium).

26 TPSulp 27, pp. 2, l. 5-3, l. 4.

27 TPSulp 27, pp. 2, l. 12-3, l. 8.

28 Parma, “Sul momento della costituzione” (n 22) 442, 444 notes 13 and 17. Parma cites the views of Gimenez-Candela and Wolf who, in different ways, explain how the vadimonium and the summons by in ius vocatio work in concert with one another to ensure a first appearance in iure. See T Gimenez-Candela, “Notas en torno al �?vadimonium'” (1982) 48 SDHI 126; J G Wolf, “Das sogenannte Ladungsvadimonium”, in J A Ankum et al (eds), Satura Roberto Feenstra Oblata (1985) 59. These views are discussed at length in Metzger, Litigation in Roman Law (n 9). reasoning, such documents are not strictly speaking “litigation documents”, but “pre-litigation documents”. They may anticipate what took place in the magistrate's court, but do not directly reveal how magistrates administered justice.

The documents should not be interpreted in this way. The error is in treating the vadimonium as extra-judicial, taking place before litigation, when in fact it is judicial, taking place in iure. Yet the error is easy to understand: for centuries this institution has been at the mercy of a slow trickle of evidence.^[350] The idea that a vadimonium was a private, pre-litigation agreement between the parties developed at a time when the only available evidence was a handful of literary sources,^[351] and the meaning of “vadimonium” had to be got from context alone. It seemed to be a private event, not only because there was no magistrate visibly ordering it to be performed, but also because many believed - erroneously, as it turned out - that the praetor had openly invited parties to use a vadimonium if they did not wish to use a formal summons.^[352] This was the general view before the discovery of Gaius' Institutes.

Gaius was the first source actually to discuss the vadimonium, and he revealed what earlier scholars could have uncovered only with great diffi­culty: that a vadimonium was a promise to reappear in iure, ordered by a magistrate for parties with unfinished business.^[353] The vadimonium was there­fore clearly an event that took place in the middle of litigation. The discovery of Gaius did not, however, put to rest the old view that the vadimonium was a private, pre-litigation agreement. The reason is that the vadimonia described in the literary sources appeared to have been performed without the partici­pation of any magistrate, while Gaius' account seemed to be describing the very opposite: a personal, face-to-face meeting with the magistrate, where the magistrate heard the details of the parties' case and tailored a specific vadimonium for them. This is not in fact what Gaius describes, but this is how it seemed to earlier generations of scholars. The solution was to set aside and define a special category of vadimonium, different from the one described by Gaius: the wholly private, “extra-judicial vadimonium”. This is the vadimonium that has played such an important part in the interpreta­tion of the Murecine archive and, in the examples given above, ultimately accounts for the “extra-judicial iusiurandum” and the “extra-judicial datio cognitoris”.

E.