Litigants before the praetor
During the preliminary hearings, the praetor exercised a conciliatory function. He tried to settle the litigants’ controversy in a friendly way. The plaintiff explained again, now in the presence of the praetor, the nature of the claim (editio actionis), indicating the specific legal remedy by which he wanted to sue (postulatio actionis).
Sometimes, instead of defending himself, the defendant acknowledged the plaintiff’s claim (confessio in iure). In this case, the defendant was condemned by his own judgment (Paul, D. 42.2.1). In some cases, the praetor authorized the plaintiff to question the defendant about some significant circumstances that could affect his personal liability. For instance, in a suit against the heir of a debtor, the plaintiff could ask the defendant whether the defendant was an heir and for what share, and in a suit against the owner for the wrongdoings of his slave, the plaintiff could ask the defendant if the slave was in his power.When the debt was a fixed sum of money, the plaintiff might request an oath from the defendant denying the existence of that debt. If the defendant took an oath swearing that there was no debt, the action concluded (Ulpian,
D. 12.2.7). If the defendant refused to swear, the praetor would order an immediate execution on the defendant’s property (missio in possessionem). This coercive measure, which the praetor applied by virtue of his imperium, was the general sanction the praetor authorized when a defendant refused the required cooperation for the proper development of the proceedings (indefensus).
Under the supervision of the praetor, the parties would determine the exact formulation of the issue (formula), including the name of the appointed judge by a consensual selection procedure. Names of potential judges were displayed on an annual list (album iudicum).
The candidate was chosen by a process of alternating rejection by the parties. Persons not listed in the album could be appointed by agreement of the parties. If the defendant refused to participate in the selection of the judge, the plaintiff had the right of unilaterally choosing the candidate. When a tribunal of three or five judges, the recuperatores, was required, the panel was chosen by lot from a pool of judges listed in the album. Senators removed from the Senate, women, people under legal age, and deaf people, among others, could not serve as a judge.If some interruptions or adjournments were necessary before the joining of the issue, or the praetor’s business had concluded for the day, the plaintiff, with the praetor’s backing, could demand that the defendant promise to appear at the next hearing (vadimonium). Since this promise was a praetorian stipulation, it was a mandatory promise for the defendant. In case of the justified absence or unavailability of the magistrate, or when parties needed more time to prepare for the next procedural steps, the praetor could order a three-day postponement of the proceedings (intertium).
More on the topic Litigants before the praetor:
- PRAETOR URBANOS AND PRAETOR PEREGRINUS
- Identity of litigants
- THE ROLE OF THE PRAETOR AS JUDICIAL MAGISTRATE
- CHAPTER IX The Praetor and the Edict
- THE PRAETOR AND THE CONTROL OF REMEDIES
- In the Roman legal system, all private and public legal disputes were initiÂated by individuals against other individuals, all of whom became litigants once the matter was brought before the magistrate.
- One day in approximately 150, a young man stood before the praetor and stated that, for all his efforts, he could not reach a verdict in a case that had been set before him.
- Praetor’s Edict, Ius Honorarium, and Ius Novum
- Times and places in which justice was administered
- PUBLICLY ORDERED, PRIVATELY PERFORMED
- Other forms of praetorian remedies
- Arbitration
- Praetorian remedies
- PUBLISHING THE DAY
- CHAPTER III THE MACHINERY OF THE LAW
- Preliminary proceedings
- The formulary procedure
- The advocate was the central element in the Roman courtroom, the lynchpin between the various participants; through him the litigant spoke, with him the opposing counsel argued, and by him the audience was moved and the judge(s) persuaded.