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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.)


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