2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"

To any modern lawyer this must seem rather strange.^[670] The Romans, however, can hardly have considered these effects of litis consumptio as unbearable in practice.^{81 * * ^[671] There were ways and means for creditors to avoid them: in place of fideiussio they could have used the manda turn credendae pecuniae for: qualification) in order to obtain a surety;^[672] and the promissio indemnitatis,^[673] as Levy^[674] has pointed out, was invented for the very purpose of thwarting litis consumptio.}

Yet, fideiussio remained the central suretyship institution. Even in post-classical vulgar law the principle of reciprocal process consumption was faithfully retained,^[675] ^{^[676] ^[677] although by now the bipartite formulary procedure had fallen into disuse and litis contestatio had consequently lost its technical significance. With these changes, as far as the procedural background was concerned, the time was now ripe to adopt a more rational approach. The decisive step was eventually taken by Justinian: "Generaliter sandmiis, quemadmodum in mandatoribus statutum est, ut contestatione contra unum ex his facta alter non liberetur, ita et in fideiussioribus observari. Invenimus enim et in fideiussorum cautionibus plerumque ex pacto huiusmodi causae esse prospectum, et ideo generali lege sancimus nuUo modo electione unius ex fideiussoribus vel ipsius rei alterum liberari, vel ipsum reum fideiussoribus vel uno ex his electo liberationem mereri, nisi satisfiat creditori, sed manere ius integrum, donee in solidurn ei pecuniae presolvantur vel alio modo satis ei fiat."⁸'-*
Here, the barring effect of litis contestatio was relinquished between surety and principal debtor as well as between several co-sureties: both principal and sureties were now to be liable until payment was rendered or until the creditor had otherwise obtained full satisfaction. Thus, process consumption had been replaced by what one could call a principle of concurrence of solutiones (satisfaction consumption, "Solutionskonkurrenz,"): the actions concur in the sense that it is no longer litis contestatio with regard to the one, but rather solutio, that makes the creditor lose the other.
The same reform, incidentally, was carried out with regard to plures rei promittendi,⁹⁰ the closely related prototype of a situation where two or more persons were liable for eadem res.^yi Over and above this, all the other instances in which a plurality of debtors lead to joint obligations^[678] ^{^[679] had to be brought in line with this new approach. Hence, Justinian faced the formidable task of eliminating litis consumptio, across the board, from all the texts he intended to incorporate into the Digest as well as the Codex.^[680] Inadvertently, however, he left a number of the classical texts unchanged.^[681] And as in some instances—especially as far as bonae fidei iudicia were concerned—the classical jurists had already abandoned process consumption in favour of concurrence of solutiones,^[682] the most dramatic confusion was bound to arise as soon as legal writers set themselves the task of constructing a logically consistent doctrinal building on the basis of the Roman sources—on the basis, that is, of a veritable heap of ruins.^[683] 3.}}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"

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