THE DAY OF RETURN

The most important variable in the postponement regime described by Gaius is, of course, the day of return. When we read Gaius we assume that, since some litigants will return on one day and other litigants on another, a magis­trate has no choice but to order postponements case-by-case.

D 2.11.8 (Gaius 29 ed prov). Et si post tres aut quinque pluresve dies, quam iudicio sisti se [sc. vadimonium] reus promisit, secum agendi potestatem fecerit nec actoris ius ex mora deterius factum sit, consequens est dici defendi eum debere per exceptionem.

And if, after three or five or more days from the day the defendant promised the vadimonium, he makes it possible for suit to be brought against him, and the plaintiff's claim has not been made worse by the delay, the result is that he ought to be given an exceptio by way of defence.

The suggestion here is that, by some means, the defendant had been ordered to perform vadimonia for appearances on successive, alternate days. Neither Huschke nor Karlowa had available the sources to decipher the overall regime. It was not until 1981 and the discovery of the lex Irnitana, a first- century town charter from Baetica, that the details of postponing to the day after the next came to light.^[369]

The lex Irnitana assigns various tasks to the local magistrate charged with administering justice. Among his tasks is the duty to “grant intertium” every day.^[370] The statute does not spell out the specifics, but we can deduce that granting intertium requires him to order a postponement to the day after the next, at the end of a judicial sitting.^[371] The postponement is a general one, for the benefit of any waiting litigants with unfinished business: a magistrate who simply leaves at the end of the sitting, without ordering the litigants to return, has put the litigants, and particularly the plaintiffs, in a precarious position.

D 4.6.26.4 (Ulpian 12 ad edictum). Ait praetor: “sive cui per magistratus sine dolo malo ipsius actio exempta esse dicetur”. Hoc quo? Ut si per dilationes iudicis [sc. magistratus] effectum sit, ut actio eximatur, fiat restitutio. Sed et si magistratus copia non fuit, Labeo ait restitutionem faciendam. “Per magistratus” autem factum ita accipiendum est, si ius non dixit: alioquin si causa cognita denegavit actionem, restitutio cessat: et ita Servio videtur. Item per magistratus factum videtur, si per gratiam aut sordes magistratus ius non dixerit.

The praetor says “or if it is shown that an action was lost because of the magis­trates, without fraud on [the claimant's] part”. Why is this included? So that resti­tutio can be given when an action is lost by the delays created by a [magistrate]. Labeo says restitutio will also be given if magistrates were not available. Note that the words “because of the magistrates” should be understood to include the failure to administer justice: if, on the other hand, the magistrate denied the action causa cognita, there will be no restitutio: this is Servius' opinion. Moreover, something is regarded as done “because of the magistrates” when the magistrate does not administer justice out of bias or corruption.

We imagine something like the following: a plaintiff summons his defendant in iure, but when they arrive the crowds are so great, or the magistrate so lazy or corrupt, that the plaintiff is not able to bring his case to litis contestatio. If his case is then time-barred, or his defendant makes himself scarce or dies (and the action does not survive to his heir), the plaintiff deserves restitutio. What may save the plaintiff's action is a postponement - not, perhaps, to a day of his own choosing, since he has not had the luxury of an audience with the magistrate - but a postponement to the day after the next.^[372] Of course the regime will be effective only if the defendant, at the conclusion of the sitting, is required to perform a vadimonium.

For present purposes, the great value in the lex Irnitana is in the way it informs our understanding of Gaius' description of the vadimonium. Earlier scholars had looked at various instances where parties had performed vadimonia, and had concluded that these vadimonia were performed outwith litigation. We can now see that a vadimonium was ordered by the magistrate - thus within litigation - but could be performed without the magistrate's personal attention. The magistrate was not, as a rule, interested in the penalty for non-appearance, and the day of return was regularised:^[375] this gave the magistrate the freedom to order postponements en masse. In short, we do not need to presume the existence of a second vadimonium, different from the one described by Gaius.

H.