Preliminary proceedings

In the formulary procedure, a summons before the praetor (in ius vocatio) was a private affair managed directly by the plaintiff. The plaintiff, not the

Civil litigation 115 praetor, had to inform the opponent either orally or in writing about the nature of the lawsuit (editio actionis), and to compel the defendant’s attendance before the praetor.

After being notified, the defendant could not offer resistance and had to immediately accompany the plaintiff into the praetor’s court, according to provision of the Twelve Tables (1.1: si in ius vocat, ito). It is hard to imagine this abruptly imposed duty occurring in the classical period, however. For one thing, the defendant could avoid this immediate obligation by appointing an appropriate guarantor (vindex), who was charged with bringing the defendant before the praetor on a fixed day. The figure of the vindex is obscure, and it disappeared in later Roman law after its role merged with that of the procurator. Moreover, the defendant could promise the plaintiff to appear in a specific place at a later time to meet and go together to the court to initiate the procedure under penalty of forfeiting a sum of money. This promise (sometimes called extrajudicial vadimonium) was the general means for initiating the formulary procedure at the end of the Republic.

The praetor backed up the private summons with certain formal legal sanctions and remedies to prevent the plaintiff from having to bring the defendant to court by force. The praetor used to grant some actions against a defendant who, after having been summoned into court, failed to appear or to send a guarantor. The praetor could also grant action against someone who used force to take away a litigant who had been summoned to appear (Gaius 4.46).