THE PENALTY

In 4.185 Gaius describes various different ways in which a defendant's appearance can be secured. It happens that the type of security that appears overwhelmingly in the surviving evidence is of the simplest kind: вЂњpersonal recognisanceвЂќ.^[356] The defendant promises to pay a penalty to the plaintiff, payment being conditional on the defendant's failure to fulfil his first promise, a promise to return on the appointed day.^[357] One might assume that when the magistrate orders the parties to return, he orders the performance of both promises.^[358] If this were the case, the magistrate could not avoid meeting with the litigants personally, because different lawsuits call for different penalties.

Even if the plaintiff had some freedom to select a penalty, the magistrate, it seems, is still left the task of ordering the performance of a specific stipulation and promise for a specific pair of litigants. Yet we notice that Gaius nowhere says that the magistrate actually orders the accessory promise to pay a penalty. Gaius speaks only about how great the penalty may be.

What Gaius is conveying only became clear with the discovery of documents recording the stipulation and promise of actual vadimonia.^[359] The documents record the stipulation and promise in an unusual way. The general formula is this:^[360]

Vadimonium factum Numeric Negidio in,,. dari stipulatus est Aulus Agerius spopondit Numerius Negidius.

The first sentence is expressed just as Gaius (4.184) would lead us to expect; if a magistrate ordered a вЂњvadimonium to be made against the defendantвЂќ, the litigants would perform the stipulation and dutifully record that a вЂњvadimoВnium was made against the defendantвЂќ.^[361] But the second sentence, standing alone as it does, is odd: the defendant, after all, has not simply вЂњpromised to payвЂќ, but has promised to pay only if he does not appear.

The second sentence in no way betrays the fact that the promise is conditional. The reason for this is that so-called praetorian stipulations, such as vadimonia, present special problems of proof when the stipulations are disobeyed.^[362] There may be, first, serious consequences for failing to perform them (e.g., trial by recupera- tores^[363]) and, second, serious consequences for failing to fulfil the promise (e.g., being treated as indefensus^[364]). A litigant who wishes to prove that he did in fact obey the order to perform the stipulation, or the litigant who wishes to show that his opponent did not fulfil the promise in the stipulaВtion, has, as evidence, only the document recording the stipulation. If the parties have added anything to what the magistrate has ordered them to do, it then becomes difficult, as a matter of proof, to distinguish what the magisВtrate ordered from what the parties voluntarily undertook to perform. Thus Ulpian, writing on praetorian stipulations:

D 46.5.1.10 (Ulpian 77 ed). Sed et si quid vel addi vel detrahi vel immutari in stipulatione oporteat, praetoriae erit iurisdictionis.

Moreover, if there is to be anything added, taken away, or changed in the stipulaВtion, that is a matter for the Praetor's jurisdiction.

D 45.1.52pr (Ulpian 7 disp). In conventionalibus stipulationibus contractui formam contrahentes dant. Enimvero praetoriae stipulationes legem accipiunt de mente praetoris qui eas proposuit: denique praetoriis stipulationibus nihil immutare licet neque addere neque detrahere.

In private stipulations the contracting parties determine the form of the contract. But praetorian stipulations take their force from the will of the Praetor who published them, and accordingly one may not change anything in a praetorian stipulation either by adding or taking away.

Ulpian's warning reminds us that, in Roman litigation, what a magistrate ordered to be done must sometimes be inferred from what the parties said they did. Hence in a case like this it is in the interests of both parties to observe the formula faithfully, and record separately what they have volunВtarily added (the penalty), avoiding any suggestion that they have altered what they were ordered to do (reappear on such-and-such a day).

The main point is that we understand Gaius better with the help of these new documents. The magistrate orders the parties to perform a stipulation to reappear, but he does not order the parties to include an accessory promise for a penalty.^[365] This frees him from having to concern himself in the details of a single case, and he does not, therefore, have to conduct a face-to-face meeting with the parties on this account.^[366]

<< | >>

↑

Source: Cairns J.W., Plessis P.J. du. (eds.). Beyond Dogmatics: Law and Society in the Roman World. Edinburgh University Press,2007. - 236 p.. 2007

THE PENALTY

More on the topic THE PENALTY: