The trial

On the day of the trial the parties appeared before the judge who, as was noted earlier, might be one of several officials (e.g., a praefectus urbi), or a judge to whom a judicial magistrate had assigned the case (iudex delegatus, iudex pedaneus, iudex datus)^M Before proceedings began both parties and their advocates (advocati)'"^{^{size=2 color=black face="Times New Roman">[1197]}} were sworn in.^{^[1198]} The parties, supported by their advocates, then presented their claims and the facts upon which they were based, as set out in the libellus conventionis and the libellus contradictorius.

In the cognitio extra ordinem the term exceptio or praescriptio was used to denote any defence put forward by the defendant in order to counter the plaintiffs claim. It should be noted here, however, that not all defences had to be raised at this stage, but only defences relating to preliminary matters and certain dilatory exceptions. The term litis contestatio denoted the point at which the parties had concluded the presentation of their claims before the judge,^{^[1199]}[1200] although they were more or less free to modify them in the course of the trial. Thus, if the plaintiffs claim was deemed excessive (pluris petitio), this did not necessarily result in the loss of the case for him (in contrast with the position adopted under the formulary system); the plaintiff was in such a case permitted to modify his claim. Under the legislation of Justinian, the trial had to be completed within three years from the litis contestation

In the next phase of the proceedings evidence was adduced and the parties presented their arguments, usually through their advocates. Both oral testimony and documentary evidence were considered, although the latter was regarded as carrying much more weight.^{^[1201]}[1202] To the category of documentary evidence belonged various public records (instrumenta publica), such as documents kept by a public authority (insinuatio actis) or documents drawn up by a public organ at the request of the party concerned (apud acta), and various private records. The latter included documents drafted by public notaries (tabelliones)™ (these documents were termed instrumenta publice confecta), written declarations (cautiones), letters (chirographa) and other records.

In general, private records carried little evidentiary weight unless they had been signed by three credible witnesses who testified to their authenticity (instrumentum quasi publice confectum). Witnesses were summoned by the court and were often required to give surety for their appearance. They were interrogated by the presiding judge and their answers were recorded.^{^[1203]} Of the various means of evidence the confession (confessio in iure) carried special weight, although it did not necessarily result in the termination of the trial.^{^[1204]} A further means of evidence was the oath, although its value was assessed by the

judge at his discretion. An oath might be taken by one of the parties to a trial upon order of the judge (iusiurandum iudiciale}, or might be imposed upon one party by the other with the judge's consent (iusiurandum in iure or necessarium}.

The presiding judge played an active part in the proceedings and had a considerable degree of freedom in assessing the evidence. At the same time, however, as a state official, he was bound by the instructions of his superiors. In addition to that, he was expected to follow certain evidentiary rules, such as those relating to legal presumptions (praesumptiones}. With respect to the latter, it was recognised that a fact had to be deemed proved, despite the absence of direct evidence, if its existence could be inferred from other facts established by the available evidence.^{^[1205]} Presumptions were defeasible, however, as the conclusions arrived at on this basis could be disproved by counter-evidence.

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

The trial

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