Litis Contestatio and Sententia in Roman Law
Tema 22 (cont.)
4 – Litis Contestatio
The formula is written at the time of Litis Contestatio, when the parties agree and submit to trial in accordance with their claims. In classical Roman law, some lawyers argued that the lawsuit was based on contract theories. The Proculeyans believed it was a procedural act, a theory adopted by Justinian. For Keller, it was the magistrate’s decree that established the lawsuit. For Wlassack, it was a private contract between the parties, submitted to the magistrate. Kaser proposed that the parties accepted the judge’s statement. Another theory suggests that the dispute becomes concrete when the formula is drawn. The essential elements are the parties’ submission to the judge’s decision and the appointment of the judge.
Effects of Litis Contestatio:
- The action is extinguished and cannot be brought again, usually resulting in an exceptio rei in iudicium deductae.
- The legal relationship is fixed at the moment of Litis Contestatio, preventing subsequent changes from influencing the trial. Facts that arose after Litis Contestatio are not considered.
5 – Apud Iudicem Phase
After Litis Contestatio, the case proceeds to the apud iudicem phase, the final stage. The judge sets the time and place of the trial, which can be held in private or public. If a party fails to appear, the case is decided in favor of the present party. The parties appear before the judge, who receives the formula. The parties then present their claims through their advocates, not directly. Evidence is presented, and the judge has considerable discretion in evaluating it.
Means of Evidence:
- Statements of the parties
- Oath before the judge
- Witness testimony (witnesses presented by the parties and subject to questioning by both parties and the judge; participation is voluntary)
- Documentary evidence
- Judicial inspections
6 – Sententia and its Enforcement
The apud iudicem phase concludes with the judge’s ruling (sententia), ending the case. The sentence is delivered orally before the parties and recorded in writing. It must conform to the formula provided to the judge.
The sentence can be declarative, simply acknowledging the parties’ rights without ordering any action (abduicatio). The sentence carries authority and is generally final. In some cases, a remedy similar to an appeal is available. An action against the judge is possible if they acted with malicious intent. If a party believes the sentence is invalid, a new trial can be held. Restitutio in integrum can be granted if the judge was coerced or false witness testimony was presented. Intercessio can also be used to challenge the sentence.
If the sentence is not satisfied within 30 days, the winning party can initiate actio iudicati to compel enforcement. If the losing party refuses to comply, the praetor issues a decree of execution, usually against property. This decree can be enforced in several ways:
- Venditio Bonorum: The creditor is authorized to seize the debtor’s assets and sell them at public auction. This applies to cases involving:
- Transfer of property
- Sale of property
- Concealment of assets
- Absconding debtors
- Assets of an heir
- Missio in Possessionem: The praetor issues a decreetum de immissione in possessionem res servandi causa, granting the creditor possession of the debtor’s assets for a period of 30 days. A second decree then appoints a magister bonorum to oversee the sale and auction of the property. The magister takes possession through the decretum ex bonorum venditione secunda. The debtor’s assets are sold at auction, and the highest bidder becomes the purchaser, responsible for paying off the debtor’s debts. The purchaser acquires ownership of the assets and can claim the debtor’s credits. The debtor remains liable for other outstanding debts and has one year to settle them. If the debtor acted fraudulently, creditors can seek restitutio in integrum through the actio rescissoria and an interdict. Justinian consolidated these remedies into the actio Pauliana for fraudulent conveyance.
- Cessio Bonorum: Introduced by a law of Augustus and retained by Justinian, this allows debtors who are not at fault to sell their assets at public auction. One benefit is that the debtor retains a minimum amount of assets for survival.
- Distractio Bonorum: This method, recognized in the early Roman Empire, allows for the progressive sale of a debtor’s assets to pay off creditors.