1. The classical principle of "Konsumptionskonkurrenz”

One further very important aspect was common to sponsio, fide­promissio and fideiussio (even though that has also been disputed). The surety promised "idem" or "id quod Maevius mihi debet".

^M Kaser, RPrl. pp. 661, 663. ⁷⁰

Levy, (1951) 14/15 RIDR 217.

¹ An example of this method is the restoration of the Celsus text (D. 12, 6, 47, discussed supra, p. 123) by Schulz. (1952) 3 Lira 18. Contra: Kaser, Festgabe Herdlitczka. pp. 143 sqq., 146 sqq.

- Levy, Obligationenrecht, pp. 196 sqq.

■ Cf. Gai. Ill, 119: "... inierdum ipse qui promised t non fuerit obligat us, velut si mulier aut pupilhis sine tutoris auctoritate, aut quilibet post mortem suam, dari promiserit, at illud quaeritur, si servus aut peregrinus spopondent. an pro eo sponsor aut hdepromissor obligetur."

Robert Feenstra, "Le caractere accessoire des differents types de cautionnement 'verbis' en droit romain classique", in: Etudes offenes a Jean Macqueron (1970), pp. 301 sqq.; Kaser, Festgabe Herdlitczka, pp. 154 sqq. considered eadem res." From the point of view of the creditor, this entailed a certain risk relating to the enforcement of his claim. For reasons of procedural economy and respect for the judicial function, nobody was allowed to come to court more than once in the same matter: bis de eadem re agere non liceat^[663] had been the hallowed rule since the days of the legis actiones. The key moment was litis contestatio; once this joinder of issue had taken place, the action was consumed^[664] and any attempt to institute a second trial would (as tar as iudicia legitima in personam with a formula in ius concepta were concerned)^[665] have been met by denegatio actionis.^[666] If, therefore, the actions against main debtor and surety were identical with respect to both their causa and their objective, any action brought against the one automatically made the other's obligation fall away too: not only did litis contestatio with the main debtor destroy the obligation of the surety (that could possibly still have been explained on the basis of the "accessoriness" of the latter)^[667] but litis contestatio with the surety also extinguished the obligation of the main debtor.^[668]

Thus, the creditor had to be careful about whom he chose to sue. Once, for instance, he had brought his action against the main debtor without being able to obtain full satisfaction, he was barred from suing the surety. The concurrence of actions, as Levy^[669] has put it, was determined in the sense of reciprocal process consumption ("Konsump- tionskonkurrenz ")■