The current view of the extra-judicial vadimonium

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 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 voluntarily, as a way to commence the lawsuit itself. The theory that lawsuits began in this way was based on an obvious error: a misreading of the Digest 2.6 rubric by 16th century Humanists. When the error was discovered, the theory changed, along with the evidence on which it was based. When two large collections of written vadimonia were discovered in the 1930s and 1950s, the theory underwent a second change. At no time did the common opinion ask whether, in fact, lawsuits began with a vadimonium. This article argues that we have no evidence that lawsuits began with a vadimonium. 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).