The summons

The first step in a civil action was the submission by the plaintiff or his representative of a letter to the judicial magistrate setting out in a summary form the factual and legal basis of his claim and asking the magistrate to notify the defendant of the claim {postulatio simplex').^{^[1188]} Following a preliminary assessment of the plaintiffs claim, the magistrate then served upon the defendant a summons accompanied by the plaintiffs statement.

This form of summons was termed litis denuntiatio and was considered to be issued by the plaintiff to the defendant with the backing of the magistrate {denuntiatio ex auctoritate). The term libellus contradictories referred to the defendant's written reply to the plaintiffs claim.^{^[1189]} By this the defendant assumed the obligation to appear before the court, usually within four months, to contest the plaintiffs claim. If the defendant failed to appear following three monthly summons {trina denuntiatione) the magistrate could prosecute him for insubordination or order that he be brought before him by force. If the defendant could not be found he was tried in absentia and was condemned.^{^[1190]}

From the middle of the fifth century' the litis denuntiatio was replaced by a new method of summoning the defendant. This method, which was the one recognised by the legislation of Justinian, was based upon a written complaint {libellus conventionis) addressed no longer to the defendant, as under the earlier system, but to the court.^{^[1191]} In his statement the plaintiff outlined the facts upon which his claim was based and asked the court to summon the defendant {postulatio simplex). If the plaintiffs application was accepted, the court, through a clerk {exsecutor litium), served upon the defendant a summons and at the same time notified him of the plaintiffs claim.

The defendant was required to respond in writing (libellus contradictorius} within ten or, from the time of Justinian, twenty days.^{^[1192]}Moreover, he was required to give the court officer (and not the plaintiff, as in the per formulam procedure) security (cautio indicatum sisti), by nominating a guarantor (fideiussor in iudicio sistendi causa), that he would appear in court and that he would bear the court costs if he was condemned.^{^[1193]} A defendant who failed to give this guarantee, if he belonged to the class of the humiliores, was held in prison by the exsecutor until the end of the trial. If he belonged to the class of illustres, by contrast, he was relieved from the obligation to give security - a formal promise under oath was deemed sufficient.^{^[1194]} The party who failed to appear before the court on the appointed day (contumacia, eremodicium) would lose his case.^{^[1195]}[1196]

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The summons

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