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Advocatio : a postponement in iure

Lewis, A.D.E.; (2005) Advocatio : a postponement in iure. Fundamina : A Journal of Legal History pp. 215-228.

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Abstract

During a lawsuit the hearing may have to be interrupted for some reason. In the formulary procedure of classical Rome this need may occur at any of the following times: (i) during the hearing in iure, (ii) between the hearing in iure and the hearing apud iudicem, and (iii) during the hearing apud iudicem. Recent scholarship, stimulated by the discovery of the lex Irnitana and the procedural documents from Herculaneum and elsewhere, has gone some way towards establishing the means utilised in these situations.1 Vadimonium was a means both of securing initial attendance to enable formal summons before the magistrate and for arranging for a party’s return in case of an interruption of proceedings in iure. It has been strongly argued that the procedure for establishing the date of the hearing before the judge was that of intertium.2 The same device, necessitating a return of the parties before the magistrate, may have been available, at least in the provinces, to postpone a hearing apud iudicem which had been once fixed. But what if it should prove necessary to interrupt the proceedings in iure? On one view, perhaps, this need not pose a problem: the magistrate possesses, perhaps, sufficient authority to entertain the parties’ application under whatever conditions seem most appropriate.3 But this is unrealistic in practice. The urban praetor in Rome sits to hear cases in any number and is undoubtedly pressed for time. Moreover the delay, whilst suiting one party, may inconvenience the other. So there was an automatic procedure for postponement, either to an agreed permitted date or to the dayafter- next (in tertium die). But there is other evidence of a formal procedure, designed perhaps for limited purposes, to ensure an interruption in the proceedings in iure.

Type:Article
Title:Advocatio : a postponement in iure
Publisher version:http://www.journals.co.za/ej/ejour_funda.html
Language:English
Additional information:Special edition: Essays in Honor of Eric H. Pool, Festschrift. Subscription required to access journal sites.
UCL classification:UCL > School of Arts and Social Sciences > Faculty of Laws

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