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In the formulary system of classical law the praetor prescribed the form in which the issue should be submitted to the judex, in the sense that he approved the issues agreed by the parties. These issues would be embodied in a formula, but the praetor was under no duty to see that it correctly stated the dispute between the parties, and the possible defences. A judex having been appointed and the formula having been issued and accepted by defendantlitis contestatio took place, and the parties were bound by the formula as by a contract. The judex was instructed or authorised to proceed in accordance with the formula.
1 My underlining.
2 Generally see Buckland, Text-Book of Roman Law, p. 632.
3 Buckland, p. 652.
4 Buckland, p. 649.
5 Buckland, p. 650.
6 G. IV.58; Buckland, pp. 650 and 702; post, p. 84.
7 Unless in the rare case where a praescriptio is inserted, e.g., ea res agatur de fundo mancipando.
8 p. 650.
9 This was the dominant view of litis contestatio: Buckland, p. 632.
10 Jolowicz, Historical Introduction to the Study of Roman Law, p. 212.
11 Schutz, Legal Science, p. 258.
12 Ante, p. 82.
13 e.g., IV.39, 40, 44 and 58/60.
14 “The fact that a sale was alleged in a demonstratio did not dispense with the necessity of proving it, if disputed”: Buckland, p. 650.
15 p. 650.
16 Gaius IV.58. Si in demonstratione plus aut minus positum sit, nihil in judicium deducitur et ideo res in integro manet.
17 My underlinings.
18 p. 702.
19 IV.58.
20 My underlining.
21 Gaius IV.47. There the claim was for a res, on which a value could not be put. In a claim for a price the condemnatio might run “for the price at which the slave was sold, judge condemn.”
22 IV.46 and 47.
23 “Reflections Suggested by the New Fragments of Gaius” (1936) Juridical Review, 339Google Scholar, particularly pp. 354–364.
24 Sed ex quibusdam causis praetor et in jus et in factum conceptas formulas proponit veluti depositi et commodati. [This sentence is followed by two formulae for an action on deposit, the first in jus with a demonstratio, the second in factum.] Gaius goes on similes etiam commodati formulae sunt.
25 p. 650.
26 (1953) 69 L.Q.R. 63, 65.
27 Buckland, p. 468. “The original formula was in factum.”
28 p. 649.
29 Ante, p. 84.
30 See too Girard, Manuel de Droit Romain, p. 1036: “Si la formule contient une inexactitude, le juge n'a pas le droit de la rectifier … Il en est du même s'il s'est fait délivrer une formule dont le demonstratio est inexacte.”