The proceedings in iure

Preliminary stage

Before formal proceedings began the plaintiff announced his intention to bring an action against the defendant {editio actionis). By this announcement, which was done extrajudicially and informally, the plaintiff notified the defendant of his claim, as well as the type of action he intended to bring, thus giving him an opportunity to settle the matter before it came to trial.

The main procedure

When both parties appeared before the praetor, the plaintiff reiterated his claim (editio actionis) and asked the praetor to grant him permission to bring an action against the defendant (postulatio actionis). The defendant could respond in one of the following ways:

(i)    He could acknowledge the plaintiffs claim {confessio in iure). Such an acknowledgment resulted in the termination of the proceedings since, with respect to its consequences, it was regarded as amounting to a condemnation by a judge.^[682] This rule, already established under the Law of the Twelve Tables,^[683] [684] [685] applied where the plaintiffs claim involved payment by the defendant of a fixed sum of money {aes confessum). If, however, the plaintiffs claim did not specify the debt, immediate execution was impossible and proceedings continued now based upon an actio confessoria. The purpose of this action was the determination of the amount of money which the defendant who had already admitted his liability ought to pay to the plaintiff.

(ii)   The defendant could deny that he was liable. In such a case the praetor would consider if, on the basis of the available evidence, a prima facie case could be made out and, if he thought that the plaintiffs claim lacked sufficient grounds of support, he refused to grant an action {denegatio actionis).^uo If, on the other hand, he concluded that the plaintiffs claim was well-founded, he granted an action and issued the formula on the basis of which the case was submitted to the judge for further examination.

(iii) Often the defendant did not deny the plaintiffs claim but put forward one or more defences against it and asked the praetor to insert these {adiunctiones) into the relevant formula in the form of exceptions {postulatio exceptionis).^nx The plaintiff could, in turn, raise one or more counter-defences of his own {replicationes) by which he sought to deny the defendant's exceptions.

(iv)  Finally, the defendant could simply refrain from replying to the plaintiffs claim.

After hearing the claims of both parties and considering the available evidence the praetor, at his discretion, could grant an action where, according to the letter of the law, no action seemed available, or refuse to grant an action where, according to the letter of the law, an action appeared possible. A plaintiff who was denied an action, however, could bring the matter again before another praetor, or ask a tribune to exercise his veto (intercessio) against the praetor's decision. If the praetor concluded that the plaintiffs claim was well-founded he granted him permission to bring an action against the defendant (dabat actionem) and, often with the help of his consilium, prepared the relevant formula. The formula was usually selected from the list offormulae included in the edictum perpetuum. If no appropriate formula for the plaintiffs action could be found in the edict, the praetor could adapt a formula designed to cover cases of a similar nature (actio util is, actio fictitia), or draw up a formula for a new action (actio in factum).^[688] [689] The formula was then given to the plaintiff (iudicium dare) who, in the presence of the praetor, notified its contents to the defendant.

Litis contestatio

The point at which all the elements of the formula had been finalised and the parties agreed to surrender their dispute to the judge was termed litis contestatio. At this point the parties were presumed to have agreed to accept and abide by the decision of the judge. Moreover, this was probably the point at which the praetor formally granted the person who had been nominated judge the authority to sit in judgement of the case and pronounce a verdict (iudicare iubere).^U6 An important consequence of the litis contestatio was that the judge could take into consideration the parties' claims as they had been formulated at the time of the litis contestatio. As a general rule, subsequent events did not affect the nature of the case or the basis upon which it was dealt with by the judge. Moreover, the death of the plaintiff following the litis contestatio did not necessarily result in the extinction of his claim. In such a case the relevant action could be transferred to the plaintiffs heirs, even though this would have been impossible before the litis contestatio because of the personal nature of the relevant claim. A further consequence of the litis contestatio was that actions which could be brought only within certain time limits (actiones temporales) became actiones perpetuae, i.e. actions that could be brought without limit of time. The rule that events taking place after the litis contestatio did not affect the nature of the original claims was subject to certain exceptions. It was recognised, for example, that if the object in dispute was accidentally destroyed or damaged the defendant was no longer liable. Moreover, with respect to actions relating to property (actiones in rem), it was recognised that the defendant who lost the case had to return, together with the property claimed, the fruits he collected, or should have collected from the property, to the plaintiff."⁷

After the litis contestatio the plaintiffs claim was said to have been 'consumed' (consumitur), and this meant that the plaintiff could not bring an action against the defendant again for the same claim.

bringing the same action twice against the defendant.^[695] [696] On the other hand, with respect to actiones in rem, actiones in personam based on the ius praetorium, actiones in factum and other actions tried by a iudicium imperio continens the bringing of the same action twice was precluded only if the defendant raised an exception based on the fact that the case has already been tried and decided upon (exceptio rei iudicataef or on the fact that in the first trial a decision had not been rendered but the point of litis contestatio had been reached (exceptio rei in iudicium deductae)^m The relevant exception was inserted, upon the defendant's request, in the praetor's formula.

Finally, another important implication of the litis contestatio was that the plaintiffs claim was substituted for a claim for pecuniary compensation, as the condemnation of the defendant under the formulary system always entailed the payment of a sum of money to the plaintiff. At the same time it was recognised that the plaintiffs claim, now regarded as being based on the ius civile, was transferable and indefeasible.^[697]

The proceedings apud iudicem or in iudicio

In the in iudicio or apud iudicem phase of the proceedings a judge (iudex unus, iudex privatus), or a panel of judges, often assisted by persons learned in the law, tried the case with a view to arriving at a verdict either accepting or rejecting the plaintiffs claim as expressed in the formula issued by the praetor.^[698] This phase of the proceedings was governed by the principle that all the arguments and procedural acts had to be conducted orally before the judge.

A litigant could argue his case by himself or through an advocate (patronus, advocatus),^]25 who advised his client before and during the trial and pleaded for him in court.^[699] [700] Although in principle any Roman citizen could serve as an advocate, this task was usually performed by senators or members of the equestrian class. The advocates were persons trained in the art of rhetoric which began to be taught in Rome from the second century BC. An important aspect of the relevant instruction was devoted to the selection of the arguments which had to be employed in dealing with a particular legal question, and the courts provided an excellent stage for the display of a person's skills as an orator and powers of persuasion. Forensic speaking reached its highest point of development during the later republican age when success at the law courts had become a key which opened the door to a successful political career.^[701] Often advocates referred to previous cases taken to lend support to their arguments. And as the focus of their arguments was often the interpretation of the praetorian formula and the question of whether the remedy it granted was justifiable in the circumstances, their views were often taken into account by the praetor in modifying existing formulae or in developing new ones. In this way the advocates played a part in the development of the ius praetorium.

On the appointed day both the plaintiff and the defendant appeared before the judge who, before the trial commenced, swore that his judgement on the case would be impartial. The parties then stated their claims^[702] and evidence was adduced, both oral and documentary.^[703] Witnesses (testes) were required to take an oath before giving their testimony. If a witness was unable to appear in person, his testimony could be read in court after it was taken down in writing (testimonia per tabellam dare}. The written evidence included letters (epistolae), memoranda (libelli), written declarations (cautiones), private account books (tabulae accepti et expens i), wills and other documents. When these documents were produced they were sealed up in the presence of witnesses (obsignatores) and were delivered to the judge who opened them in court. The evidence included, moreover, the results of inspections carried out by experts and state officials. A confession before the judge (confessio in iudicia) was also relevant as evidence, although its value was determined by the judge at his discretion.^[704] In the absence of direct evidence, the court sometimes relied upon presumptions (praesumptiones) when the existence of certain facts could be logically inferred from other facts already established.^[705] These presumptions were defeasible, however, and could be refuted by further evidence. As a general rule, it fell upon the plaintiff to prove the facts upon which his claim was based, although the judge was not always bound by this rule.

After all the evidence had been presented and the arguments heard the judge pronounced (pronuntiatio) his verdict (sententia), usually in the presence of the parties or their representatives.^[706] When deciding on a case a judge was often assisted by a panel of experts (consilium) whose opinions, however, were not binding on him. If the judge thought that the case remained unresolved (sibi non liquere), he could defer issuing a decision until further evidence was obtained.^[707] According to the Law of the Twelve Tables, the trial had to be concluded within one day.^[708] It is unlikely, however, that this rule applied under the formulary system. The lex lulia iudiciorum privatorum (17 BC) provided that, with respect to the iudicia legitima, the trial expired eighteen months after the litis contestatio, if no decision had in the meantime been reached.^[709] On the other hand, with respect to the iudicia imperio continentia, a trial came to an end with the

214 The Historical and Institutional Context of Roman Law expiry of the imperium of the jurisdictional magistrate who had instituted the proceedings. ³⁶

As has been noted, in deciding a case the judge was bound by the conditions of the formula upon which the relevant lawsuit was based. If the plaintiff had claimed that the defendant owed him something, the judge's verdict had to include a condemnation (condemnatio) or, if the claim proved unfounded, an acquittal {absolutio). In the former case the defendant had to pay the plaintiff a certain sum of money {condemnatio pecuniaria), often determined by the judge in the light of considerations of good faith and equity. When the judge decided on a divisory action {actio communi dividundo), the verdict had to include an adjudgment (adiudicatio). In some cases the adiudicatio could be accompanied by a condemnatio pecuniaria, if that was necessary for the fair division of the common property. A plaintiff who in the intentio (i.e. the part of the formula containing his claim) had asked for more than he was entitled {plus petere) would lose his case.^[710] [711] [712] [713] If he had asked for less {minus petere) he was only entitled to what he had asked for. In the latter case the plaintiff could sue again for the remainder of the debt. The relevant action could not be granted by the same praetor, however, as it could be blocked by an exceptio litis dividuae.^Ui In general, the judge's decision generated an obligation for the party who lost the case to execute it {iudicatum facere oportere)™ Moreover, a decision by which an object was adjudged to one of the parties or, in a divisory action, to more than one persons {adiudicatio), created new ownership rights on the property or share adjudged to the party or parties concerned. Finally, certain decisions entailed for the party condemned a diminution of his estimation among his fellow-citizens {infamia). This occurred when the person condemned had

committed an act involving personal turpitude, such as, for example, theft (fur turn) or wilful fraud (dolus malus).'⁴⁰

During the republican period the judge's decision was final and therefore not subject to appeal. The right of appeal (appellatio) against decisions arrived at through the per fortnulam procedure was introduced by Emperor Augustus in the early years of the Empire.^[714] [715] This right was first introduced in connection with the extra ordinem procedure ^[716] and was associated with the power of the emperor to block by veto (intercessio) official acts of other magistrates. Appeals were addressed to the emperor and were decided either by the emperor himself or, more often, by state officials acting in his name.^[717] [718] The purpose of an appeal was either the reversal of a decision or merely its modification. Furthermore, a decision could be declared invalid if some important condition relating to the legality of the relevant process had not been met as, for example, where the decision had been issued by a judge who did not meet the prescribed age. The validity of a decision could be challenged by the party who lost the case, but if his challenge was rejected he had to pay double the amount specified in the original judgement (revocatio in duplum).^w