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AMPHISBETE´SIS

AMPHISBETE´SIS (ἀμφιδβήτησις), the act of claiming an inheritance (L. & S.) or, more properly, of disputing the title of the first claimant. None but direct heirs might enter and take possession of the estate immediately after the owner's death; more distant relatives, or claimants by adoption or devise (κατὰ δόσιν), were not at liberty to enter until the estate was formally adjudged to them. The proper course was to make application to the archon eponymus, who attended at his office for that purpose every month in the year except the last (Scirophorion). The party who applied was regarded as a suitor, and (on obtaining a hearing) was said λαγχάνειν τοῦ κλήρου (Isaeus, Or. 11 [Hagn.], § § 15, 26-7; Or. 3 [Pyrrh.], § 60; Or. 9 [Astyph.], § 3; Demosth. Steph. ii. p. 1136.23). As the first regular assembly (κυρία ἐκκλησία held after he had received notice, the archon caused proclamation to be made, that such a person had died without issue, and that such and such persons claimed to be his heirs. The herald then asked εἴ τις ἀμφιδβητεῖν παρακαταβάλλειν βούλεται τοῦ κλήρου. There is no doubt about the meaning of παρακαταβάλλειν, “to make a deposit by way of security for costs;” the amount in this case being a tenth part of the value of the property in dispute, which was returned to the party if successful. (Pollux, 8.32, 95; Bekk. Anecd. p. 197, 11 Isaeus, Or. 4 [Nicostr], § 10; Or. 11 [Hagn.], § 13; Demosth. c. Macart. p. 1051.5; c. Leoch. p. 1090.34, &c.)

The general question of procedure in cases of disputed inheritance is treated under HERES; the only point now to be considered is whether ἀμφιδβήτησις and παρακαταβολὴ were employed under different conditions or were alternatives open to all suitors in every case. It has been argued, indeed, a s by Hefter and De Boor (quoted by Westermann ap. Pauly, and Caillemer ap. Daremberg and Saglio s. v.), that all who put in a claim were compelled to give security; but to this it seems sufficient to answer, that in that case the formula would have been ἀμφιδβητεῖν καὶ παρακαταβάλλειν. It is clear, therefore, that two distinct processes are intended. There is little probability in the notion that the παρακαταβολὴ was required of those who claimed the whole inheritance, not of those who only claimed a part (C. R. Kennedy, in the former editions of this work); or that it was required only of those who sought to disturb possession already decreed (Bunsen, de jure hered. Athen. p. 92); or only of more distant relatives, claiming against nearer (Meier and Schömann, Att. Process, pp. 464, 618 f.). The best explanation is that the claimant in all cases had his choice of the two modes of procedure; but if he failed to back his claim with a substantial deposit, he would not be likely to obtain a favourable hearing. This is the view of Platner (Process und Klagen, 2.310 ff.) and others, including Caillemer ap. D. and S. We may perhaps say that this variety of remedies ostensibly gratified the Athenian taste for cheap law, involving no risks for poor men, while it provided a real security against frivolous litigation. If the subsequent claimant or claimants elected to proceed by way of παρακαταβολὴ, the first suitor was practically, though perhaps not legally, compelled to do the same, on pain of having it thought that his own claim would not bear investigation.

[W.W]

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