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p708 Litis Contestatio

Article by George Long, M.A., Fellow of Trinity College
on pp708‑709 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

LITIS CONTESTA′TIO. "Contestari" is when each party to a suit (uterque reus) says, "Testes estote." Two or more parties to a suit (adversarii) are said contestari litem, because when the Judicium is arranged (ordinato judicio) each party is accustomed to say, "Testes estote." (Festus, s.v. Contestari.) The Litis Contestatio was therefore so called because persons were called on by the parties to the suit to "bear witness," "to be witnesses." It is not here said what they were to be witnesses of, but it may be inferred from the use of the words contestatio and testatio in a similar sense in other passages (Dig. 28 tit. 1 s20; Ulp. Frag. XX s9) that this contestatio was the formal termination of certain acts of which the persons called to be witnesses were at some future time to bear record. Accordingly the Contestatio, spoken of in the passage of Festus, must refer to the words ordinato judicio, that is, to the whole business that has taken place In Jure and which is now completed. This interpretation seems to be confirmed by the following considerations.

When the Legis Actiones were in force, the procedure consisted of a series of oral acts and pleadings. The whole procedure, as was the case after the introduction of the Formulae, was divided into two parts, that before the Magistratus or In Jure, and that before the Judex or In Judicio. That before the Magistratus consisted of acts and words by the parties, and by the Magistratus, the result of which was the determination of the form and manner of the future proceedings In Judicio. When the parties appeared before the Judex, it would be necessary for him to be fully informed of all the proceedings In Jure; this was effected in later times by the Formula, a written instrument under the authority of the Praetor, which contained the result of all the transactions In Jure in the form of instructions for the Judex. But there is no evidence of any such written instructions having been used in the time of the Legis Actiones; and this must therefore have been effected in some other way. The Litis Contestatio then may be thus explained: the whole proceedings In Jure took place before witnesses, and the Contestatio was the conclusion of these proceedings; and it was the act by which the litigant parties called on the witnesses to bear record before the Judex of what had taken place In Jure.

This, which seems a probable explanation of the original meaning of Litis Contestatio, may be compared to some extent with the apparently original sense of Recorder and Recording in English law (Penny Cyclopaedia, art. Recorder).

When the Formula was introduced, the Litis Contestatio would be unnecessary, and there appears no trace of it in its original sense in the classical jurists. Still the expressions Litis Contestatio and Lis Contestata frequently occur in the Digest, but only in the sense of the completion of the proceedings In Jure, and this is the meaning of the phrases, Ante litem contestatam, Post litem contestatam (Gaius, III.180, IV.114). The expression Lis Contestata in a passive sense is used by Cicero (pro Rosc. Com. c11, 12, pro Flacco, c11, and in the Lex Rubria of Gallia Cisalpina, col. I. l. 48, "quos inter id judicium accipietur leisveº contestabitur"). As the Litis Contestatio was originally and properly the termination of the proceedings In Jure, it is easily conceivable that after this form had fallen into disuse, the name should still be retained to express the conclusion of such proceedings. When the phrase Litem Contestari occurs in the classical jurists, it can mean nothing more than the proceedings by which the parties terminate the procedure In Jure and so prepare the matter in dispute for the investigation of the Judex.

It appears from the passage in Festus that the phrase Contestari litem was used, because the words "Testes estote" were uttered by the parties after the Judicium Ordinatum. It was therefore the uttering of the words "Testes estote" which p709gave rise to the phrase Litis Contestatio; but this does not inform us what the Litis Contestatio properly was. Still as the name of a thing is derived from that which constitutes its essence, it may be that the name here expresses the thing, that is, that the Litis Contestatio was so called, for the reason which Festus gives, and that it also consisted in the litigant parties calling on the witnesses to bear record. But as it is usual for the whole of a thing to take its name from some special part, so it may be that the Litis Contestatio, in the time of the Legis Actiones, was equivalent to the whole proceedings In Jure, and that the whole was so called from that part which completed it.

The time when the proper Litis Contestatio fell into disuse cannot be determined, though it would seem that this must have taken place with the passing of the Aebutia Lex and the two Leges Juliae which did away with the Legis Actiones, except in certain cases. It is also uncertain if the proper Litis Contestatio still existed in those Legis Actiones, which were not interfered with by the Leges above mentioned; and if so, whether it existed in the old form or in a modified shape.

This view of the matter is by Keller, in his treatise "Ueber Litis Contestation und Urtheil nach Classischen Römischen Recht," Zürich, 1827. Other opinions are noticed in his work. The author labours particularly to show that the expression Litis Contestatio always refers to the proceedings In Jure and never to those In Judicio.

Savigny (System, &c. VI. §256‑279) has also fully examined the Litis Contestatio. He shows that in the extraordinaria Judicia [Judicium] which existed at the same time with the process of the formula, and in which there was neither Judex nor formula, and in which the whole legal dispute was conducted before a magistratus, the Litis Contestatio means the time when the parties had fully declared their several claims and answers to such claims before the magistratus. This was substantially the same as the Litis Contestatio, and the difference lay simply in the external form (comp. Cod. 3 tit. 9 s1, Rescript of Severus and Antoninus). At a later period, when all actions had become changed into extraordinaria judicia, that which was before the exception now became the rule, and Lis Contestata in the system of Justinian consisted in the statements made by the parties to a suit before the magistrate respecting the claim or demand, and the answer or defence to it. When this was done, the cause was ready for hearing.

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