1. ROMAN CIVIL PROCEDURE
UNIT 11

2. Two phases of the procedure
ROMAN CIVIL PROCDURE
1. phase
- to frame the issue to be tried
- to appoint a judex or judices
PROCTOR – formula, set of instructions
PROCEDURAL CONTRACT – parties abide by the judgement (it is binding on the parties)
2. phase
IN JURE (before the magistrate)
IN JUDICIO (before the trier/triers, judex/judices)

3. SUMMONS
In the classical law summons for a lawsuit was performed privately: a person would find his opponent or his opponent’s representative and bring him before the magistrate

4. THE FORMULARY PROCEDURE
Forms of action were described precisely, which gave the law continuity
In an individual case, the forms could be altered and assembled in different ways to create a specific statement of issues
This altering and assembling of forms was performed by a judicial magistrate

5. STAGES IN THE CIVIL PROCEDURE
1. In jure, before a magistrate of the state, the praetor, charged with administering justice. The magistrate determined whether the litigants should be allowed to proceed and, if so, what form their action should take
2. In judicio, before a judge, a private individual who did not have to be a lawyer. This stage was the trial itself

6. PRAETOR
An elected magistrate
Commander of an army
Provincial governor

7. THE EDICT
The magistrate needed a scheme for determining which claims would be allowed to proceed
He maintained a long list announcing his intentions and expectations regarding the lawsuits he would allow
This list, the edict, contained individual entries describing the actions which he was willing to grant
If the litigant’s circumstances did not match any of the entries, he might persuade the magistrate to invent a new claim and allow it to go before a judge
If the magistrate accepted, he might even incorporate the new claim in the edict for future cases

8. JUDGE
The judge did not hold office but was appointed for service in a single case, and selected personally by the parties if possible
He had no special qualifications other than his wealth
A private individual who conducted the trial without guidance from the state
In the later empire he was an official

9. CONSEQUENCES
A lay judge needed detailed written instructions at the outset
His conduct of the trial and his judgement was of no enduring importance to the legal system

10. INSTRUCTIONS
The final expression of the law in a given case was the set of instructions that the magistrate gave to the judge (prepared by the PROCTOR)
The parties’ pleadings, containing their allegations
The allegations had to satisfy the requirements of the law as determined by the magistrate, they came into the judge’s hands in a form that permitted relief under the law
The single most important item in the lawsuit, far more important than the judgement
The core of the dispute: what a party had to show in order to win

11. FORMULAE
The instructions – prepared according to formulae, composed of “specially prepared phrases”
Each formula – divided into parts, and each part had a particular function
Very few actual formulas survived

12. A FORMULA FOUND NEAR POMPEII, 1ST CENTURY AD
“Blossius Celadus shall be the judge.
If it appears that C. Marcius Saturninus ought to give 18,000 sesterces to C. Sulpicius Cinnamus, which is the matter in dispute, C. Blossius Celadus, the judge, shall condemn C. Marcius Saturninus for 18,000 sesterces in favour of c. Sulpicius Cinnamus; otherwise he shall absolve”

13. THE TRIAL
The trial took place in the forum, an open space used at first as the market place but later used chiefly for judicial proceedings

14. PRINCIPLES OF PROCEDURE
1. The principle of party representation
2. The principle of publicity: public participation acts as a restraint of abuses of procedure
3. The principle of orality, closely related to the principle of immediacy

15. THE PRINCIPLE OF IMMEDIACY
Preserves the integrity of a judgement by ensuring that arguments and evidence are put to the judge in the most direct manner possible
One-day rule: pleading, proof, argument and judgement must take place on the same day, the judgment being given before sunset
If judgement cannot be given before sunset, the case must begin anew on another day, with at least some of the events of the previous session being repeated
A judge should have a vivid picture of the case in mind and thereby be less liable to make a mistake

16. Which expression is missing?
___________ is a person asking for a solution through any kind of proceeding, because the other person violeted its rights.
2. Any form of various written forms by which the praetors of ancient Rome referred cases to judges for hearing and adjucation was called _____________.
3. The person whose special function was to administer justice was called ___________ or ____________ in Roman law.
4. A private person appointed in Roman law to hear and determin a case was called __________ , a judge in Roman law.

17. KEY
PLAINTIFF is a person asking for a solution through any kind of proceeding, because the other person violeted its rights.
2. Any form of various written forms by which the praetors of ancient Rome referred cases to judges for hearing and adjucation was called FORMULA.
3. The person whose special function was to administer justice was called PRAETOR or MAGISTRATE in Roman law.
4. A private person appointed in Roman law to hear and determin a case was called JUDEX , a judge in Roman law.