LITIS CONTESTA´TIO
LITIS CONTESTA´TIO Under the oldest Roman civil
process--that known as the
legis actiones--the
proceedings prior to hearing and judgment were of an exceedingly formal and
technical character. The parties, on appearing before the praetor, had to
repeat certain prescribed forms of words, appropriate to the nature of the
particular action, and to perform a variety of solemn and symbolical acts
(e. g. Gaius, 4.16); and any error or omission in these on the part of the
plaintiff inevitably lost him his remedy: “Ex nimia subtilitate
veterum qui tune jura condiderunt eo res perducta est, ut vel qui
minimum errasset litem perderet” (Gaius, 4.30). The object of
these proceedings was preliminary: they were intended to ascertain
[p. 2.68]the question in dispute, and to prepare it for
hearing and decision. The hearing and decision itself was in many cases
entrusted to a private person appointed by the praetor, though selected by
agreement between the parties, or to the standing collegia of judges
(decemviri and centumviri): but sometimes the praetor would undertake it
himself. In any case, however, it seems to have been far less formal than
the preliminary proceedings, which had always to take place before the
praetor in person, and to which alone the term
legis
actio was applied (Gaius, 4.11). Owing to the supreme
importance to the parties of their being gone through with perfect
precision, and to the fact that at this period no written records were
preserved of judicial proceedings, which were purely oral, it was the
practice for both parties, at the close of the formal
legis actio (though before a word of evidence or argument on
the question at issue), to appeal to the bystanders to take note of the
proceedings, that if any dispute subsequently arose as to their validity
evidence might be forthcoming of what had been done (cf. Ulpian,
Reg. 20, 9;
Dig. 28,
1,
20). This appeal was
called
litis contestatio:
“Contestari est cum uterque reus dicit TESTES
ESTOTE” ; “Contestari litem dicuntur duo aut
plures adversarii quod ordinato judicio ( ‘when
the cause has been made ready for hearing’ ) utraque pars dicere
solet TESTES ESTOTE” (Festus). The view
here taken of the nature of
litis contestatio is
that of Bethmann-Hollweg (
Civil Process, i. p. 177) and
Keller (
Civil Process, p. 281). By others it is held that
what the parties called upon the bystanders to attest was, not that the
legis actio had been duly consummated, but
that they had solemnly agreed to submit their dispute to arbitration instead
of settling it in the more primitive way of self-redress (Ihering,
Geist des römischen Rechts, i. p. 171); and some
(e. g. Mayer,
Die Litis Contestation, 1830, and originally
Rudorff,
Römische Rechtsgeschichte, 2.71) go so far
as to assert that the form in which the agreement was made was
per aes et libram [
NEXUM]. This theory is based upon the fact that in
the formulary period, as will be seen below,
litis
contestatio produced (or, more correctly, was the outward sign of)
consequences which usually are only producible by contract; but it is
rejected by most writers on the subject (e. g. Puchta,
Institutionen, § 172; Keller, § 62), and
seems too fanciful to be seriously entertained. Others (e. g. Heffter,
Institutionen des röm. und teutschen
Civilprocesses, 1825) even hold that there was no real
litis contestatio at all in the
legis actio period, but that it was introduced with the
formulary system to give a solemnity to the proceedings
in jure and their results, which in themselves they did not
possess.
The
legis actio procedure was swept away by the
Lex Aebutia,
circ. 170 B.C., and its place was taken by the system of formulae, one of the
main features of which was the universal division of the proceedings in an
action into two portions: those which took place before the praetor
(
in jure) and those which took place before
the judex (
in judicio). The object of the
proceedings
in jure was to fix the issues to be
tried: when they had been settled, they were briefly embodied in a written
document or formula, by which the judge was appointed and informed of the
points which he had to determine: the actual hearing of the case was his and
not the praetor's function (Gaius, 4.30). Under this system of procedure,
litis contestatio, in its old sense of an appeal
to witnesses, seems no longer to have taken place, for the best evidence
that could be desired of the correctness of the proceedings
in jure was the written formula, though
Bethmann-Hollweg (
Civil Process, ii. p. 480) thinks that it
may have survived for some time through the Roman fondness of old forms, but
at any rate not till the time of the classical jurists. The term
“litis
contestatio,” however,
is retained throughout to denote the point of time in the history or
development of an action at which it passed from praetor to judex (
Cic. pro Rosc. Com. 11, 32;
12, 35;
Lex Gall. Cisalp. 1.48; Gaius, 3.180, 4.114). It
means, technically, the moment at which the matter really becomes an
“action” at all: the legal position of the parties in
respect of the particular suit is definitely fixed; and though perhaps it is
incorrect to say that
litis contestatio (in this
sense)
produces important results for them, it
certainly is the sign and symbol that those results have ensued. For
instance, from that moment the plaintiff's right of action is consumed
(Gaius, 4.106, 107): he cannot subsequently sue at all, or at any rate he
cannot sue with any effect, on the same ground. Similarly prescription of
the right of action ceases to run, for the action has been commenced; and
consequently also the defendant cannot as a rule evade condemnation, if the
plaintiff proves his case, even though after
litis
contestatio it should become impossible for him (e. g.) to restore
the property in dispute owing to its accidental destruction. For these, and
other points in which the rights and duties of the parties were irrevocably
fixed by this definite commencement of the action (and which are sometimes
improperly described as consequences of
litis
contestatio), reference may be made to Mr. Poste's edition of Gaius
(pp. 447-451, 2nd edit.). In point of fact, these consequences are analogous
to those which would be produced by contract, and many writers attribute
these modifications in the legal relation of the parties to an assumed
contract, by which they are supposed to voluntarily submit themselves to the
jurisdiction of the court, to bind themselves to abide by its judgment, and
to waive any right which they may have had to settle the matter after
another fashion. But such an assumption is in reality needless, for these
consequences may more correctly be ascribed to the very nature of the
proceedings
in jure, the law implicitly
ordaining that they shall necessarily flow from the fixing of the issues in
the formula (Puchta,
Institutionen, § 172; Walter,
Geschichte des römischen Rechts, §
720); and if this view be accepted, it would seem to be unnecessary (with
some of those by whom it is supported) to regard
litis
contestatio even as a quasi-contract.
In the time of Diocletian (A.D. 294) the formulary system finally
disappeared, and actions were commenced and conducted in much the same way
as in modern courts of justice, the procedure being called simply
cognitio. In this period
litis
contestatio denotes the summary statement of his case before the
judge by the plaintiff, and the similarly summary statement
[p. 2.69]by the defendant of the nature of his defence, evidence and
argument following in detail: “Lis tune contestata videtur, cum judex
per narrationem negotii causam audire coeperit” (Cod. 3, 9; cf.
Cod. 3, 1, 14, 1; Cod. 2, 59, 2, pr.). The Greek equivalent of
litis contestatio in this sense is
προκάταρξις. (Nov. 53, 3, 2; 80, 10; 96, 1;
Basil. 7.1, 3). Many of the old results for the parties still ensue, though
most writers are of opinion that the right of action was no longer
necessarily extinguished (see Bethmann-Hollweg,
Civil
Process, iii. pp. 257-262).
(See Holtzendorff's
Rechtslexicon, s. v., and the literature
of the topic
ad fin., especially Keller,
Litis Contestation und Urtheil, and Windscheid,
Actio, § § 8, 9.)
[
J.B.M]
