Representation in litigation
Litigants could appoint representatives, usually friends or relatives. Besides a guardian (tutor) or an administrator (curator), specific representatives in litigation were the cognitor and the procurator.
The cognitor was appointed by authorization (iussum) according to prescribed and solemn words in the presence of the other litigant, but not necessarily in the presence of the cognitor: “Since I am claiming the land from you, I give you L. Titius as my cognitor in this matter” (Gaius 4.83). The cognitor fully represented the principal and was essentially a procedural alter ego of the real party. When the cognitor assumed the representation, the plaintiff gave up his principal’s right of action. He could not later sue the same defendant for the same issue (non bis in idem). The judgment, however, was enforced either for or against the principal; as a result, it was the principal who had to give security to pay the judgment debt (cautio iudicatum solvi).The procurator, by contrast, was appointed informally, merely by mandate (Gaius 3.84). He was an indirect representative. For this reason, the procurator of the plaintiff had to give security that the principal would ratify and would not sue again with the same action (cautio de rato), and the procurator
Civil litigation 117 of the defendant had to give security to guarantee the payment of the judgment debt (cautio iudicatum solvi). As a result, the name of the procurator was inserted in the condemnatio of the formula, and the execution after a judgment was only for or against him. Full representation was gradually extended to the procurator so that, in Late Antiquity, the difference between procurator and cognitor lost its relevance. Under Justinian, there were no cognitors for legal representation.
More on the topic Representation in litigation:
- Representation
- LITIGATION WITH SEVERAL CREDITORS: FIRST COME, FIRST SERVED
- Direct representation: introduction
- The perils of litigation
- Civil litigation
- Roman Litigation
- APPENDIX I. THE RELATION OF THE CONTRACTUAL ACTIONS ADIECTITIAE QUALITATIS TO THE THEORY OF REPRESENTATION.
- Excursus 2. The advocate as �representative’
- The major reform on intestacy of Emperor Justinian
- Acting for (and through) others in Roman law
- Post-classical developments, Corpus Juris and ius commune
- CONTENTS
- Summary of Contents
- Cession
- Contractual Agreements in Favour of a Third Party
- The Role of Writing Outside Contracts Litteris
- CHAPTER VII. THE SLAVE AS MAN. COMMERCIAL RELATIONS APART FROM PECULIUM. LIABILITIES.
- ‘Family’, ‘homecoming’, ‘growing together’—in trying to reconstruct how European identity was discursively imagined in Germany’s EU enlargement discourse during the 1990s, Hulsse (2006) argues that metaphors like these primordialise Europe and establish a binary opposition between insiders and outsiders.
- Conclusions