The Current View of the Extra-Judicial Vadimonium
Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung, vol. 117, pp. 133-178, 2000
46 Pages Posted: 4 Nov 2008 Last revised: 9 Jan 2016
Date Written: November 2, 2008
How did a lawsuit begin in classical Rome? There is a common view that it began with a contract: the parties made an agreement for the day and hour when they wished to appear before the magistrate. The contract was called a "vadimonium," a formal promise to appear. We know that these vadimonia were used by magistrates to bring defendants back before the court. The question is whether the parties used them at the beginning of the suit, voluntarily, as a convenient way to schedule a first meeting.
The theory that lawsuits began in this way was based on an error, now universally acknowledged: a misreading of the Digest 2.6 rubric by 16th century Humanists. Yet when the error was discovered, the theory was altered rather than rejected. When two large collections of written vadimonia were discovered in the 1930s and 1950s, the theory underwent a second alteration. At no time did the common opinion ask whether, in fact, lawsuits began with a contract.
This article argues that we have no evidence that lawsuits began with a conrtact. The vadimonium evidence we possess, to the contrary, are instances of the ordinary, compulsory vadimonium, used by magistrates to bring defendants back to court.
This article is a study preliminary to the author's Litigation in Roman Law (2005).
Keywords: Roman law, Vadimonium, Civil procedure
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