Evidence for Ladungsvadimonium

The subject of this paper is the Ladungsvadimonium, and in particular the enormous body of documents we possess which seem to be examples of Ladungsvadimonia. None of these documents declares outright that it is a Ladungsvadimonium. Therefore I would like to look very briefly at these documents and try to discover exactly what it is that marks these documents as Ladungsvadimonia, and then ask whether any or all of these documents might not be Ladungsvadimonia, but examples of another kind of vadimonium.

Perhaps before I begin I should describe very briefly what I understand a Ladungsvadimonium to be. As I see it described in the literature, the Ladungsvadimonium is a stipulation by a defendant in a civil case. In the stipulation the defendant promises that he will appear before a magistrate in that case. But: the civil case has not yet begun. The Ladungsvadimonium takes place before the parties have even appeared for the first time before the magistrate. And this is the principal difference between the Ladungsvadimonium and the ordinary vadimonium: the ordinary vadimonium interrupts the hearing in iure, and the Ladungsvadimonium introduces the hearing in iure. The other principal difference between the Ladungsvadimonium and the ordinary vadimonium -- and this is an important difference for purposes of the present discussion -- is that a defendant gives the ordinary vadimonium because he must: the praetor orders the defendant to reappear before him on some later date. The Ladungsvadimonium, on the other hand, is voluntary: the defendant promises to appear because he wishes so to promise. Some have suggested various reasons why a defendant might wish to make a promise like this. I do not need to explore these reasons: I only want to point out the main difference between these two types of vadimonia: the ordinary vadimonium being compelled, the Ladungsvadimonium being voluntary. All of these features were noted in the literature before the discovery of any actual vadimonium documents. The details about the Ladungsvadimonium were assembled from various literary sources -- mostly Cicero -- and then suddenly a marvelous corpus of documents became available. So the first editors of the documents understood the documents to be examples of something that was only known about indirectly, from Cicero. The first collection of vadimonia came from Herculaneum a little over fifty years ago. There were four of them. These four documents were immediately taken as evidence of the Ladungsvadimonium. And this is the main question: why were they taken as evidence of the Ladungsvadimonium rather than the ordinary vadimonium? There are several reasons, but the main reason they were taken as Ladungsvadimonium had to do with certain language that was common to all of them. The language comes in the very first line; each begins with the same words: vadimonium factum, followed by the name of one of the parties in the dative. The syntax of this language is not very clear. Arangio-Ruiz was one of the early editors, and he interpreted 'vadimonium factum' to mean that the agent or 'subject' of facere was the plaintiff. This analysis led him to believe that the act of 'making a vadimonium' to someone meant 'enjoining a person to make a promise'. So on Arangio-Ruiz' interpretation, all of the surviving vadimonia begin with 'plaintiff orders defendant to promise'. This interpretation is no longer followed by anyone, so far as I am aware. It lost favour for several reasons. One reason it lost favour is because a 'unilateral injunction' was not in keeping with what the Ladungsvadimonium was understood to be. It was understood to be a voluntary engagement. But his interpretation lost favour mostly because his syntax did not seem quite right. There are several Digest passages which suggest that a vadimonium took the form of a double stipulation. First, there was a stipulation that a person appear at a certain time and place, and second, there was a stipulation that if that person did not appear, he would pay a particular sum. If this is in fact what our vadimonium documents describe, then the words 'vadimonium factum' do not describe an injunction, plaintiff to defendant, but in some way describe a bilateral arrangement. And then Arangio-Ruiz's interpretation comes under assault again by the following passage in Gaius (G.4.184):

Cum autem in ius vocatus fuerit adversarius, neque eo die finiri potuerit negotium, vadimonium ei faciendum est, id est, ut promittat se certo die sisti.

When a defendant has been summoned to court, but the proceedings cannot be finished on the same day, he has to give bail (vadimonium), that is, he must enter into an undertaking to appear on a certain day. [trans. de Zulueta]

The Gaius passage suggests that the agent of 'facere' is the defendant rather than the plaintiff. Gaius is here discussing the ordinary vadimonium, and he gives the phrase 'vadimonium ei faciendum est' -- which of course uses the same syntax as our documents -- and after he gives the phrase he feels obliged to explain it with the words 'id est'. And in explaining it he equates making a vadimonium with giving a promise. So, in a vadimonium, facere is the act of the defendant. Now admittedly, the syntax is strange, because we have to take the dative -- the defendant is in the dative -- as expressing the subject of facere. But we know the syntax is strange, because Gaius takes the trouble to explain it with the words 'id est'. Professor Georg Wolf made all this very clear some years ago. The reason I have mentioned the 'unilateral injunction' notion is because, even though the theory was fairly short-lived, it caused trouble. An ordinary vadimonium, one that interrupts the hearing in iure, cannot be a unilateral injunction by the plaintiff. That means that, according to this theory, the vadimonium documents must be Ladungsvadimonia. And indeed, the 'unilateral injunction' notion is the main reason why the Herculaneum Tablets were understood to be Ladungsvadimonia. It was perhaps not the only reason, but it was certainly the principal reason. And even after the unilateral injunction idea was dismissed, the question whether the documents were Ladungsvadimonia was never revisited. And then some years later the Puteoli tablets were discovered, and these vadimonia looked exactly like the vadimonia from Herculaneum, and in the literature now all surviving vadimonia documents are treated as Ladungsvadimonia. I would now like to consider other internal evidence--other than the words vadimonium factum--which has been cited to support the argument that our vadimonium tablets are Ladungsvadimonia. In several of the tablets, there are verbs in the future tense.

TPSulp. 2. Vadimonium factum C. Sulpicio Fausto in VIII kalendas Iulias primas Puteolis in foro ante aram Hordionianam hora tertia; HS 50,000 acturus ex empto dari stipulatus est L. Faenius Eumenes, spopondit C. Sulpi-

C. Sulpicius Faustus gave bail for appearance in the forum at Puteoli on 24 June before the ]ara Hordioniana at 9:00. L. Faenius Eumenes, intending to bring an actio ex empto, stipulated and C Sulpi[cius Faustus] answered for the payment of 50,000 sesterces.

TPSulp. 3. Vadimonium factum C. Sulpicio Fausto in III nonas Iulias primas Puteolis in foro ante aram Augusti Hordionianam hora tertia; HS 50,000 maioris summae rem in iudicium deducturus et HS 1,000 depositi anuli arrae nomine stipulatus est L. Faenius Eumenes, spopondit C. Sulpicius Faustus. Actum Puteolis V nonas Iulias L. Vitellio L. filio Messala Poblicola cos.

C. Sulpicius Faustus gave bail for appearance in the forum at Puteoli on 5 July before the ara Augusti Hordioniana at 9:00. L. Faenius Eumenes stipulated and C. Sulpicius Faustus answered for the payment of 50,000 sesterces (the suit to be brought to joinder of issue being worth more than this) and a ring deposited as a down-payment. Executed on 3 July etc.

To some, these verbs indicate that these tablets are Ladungsvadimonia. The idea is that when the plaintiff says, for example, that he is going to bring an actio ex empto, the document is speaking from before the time he brings the actio. In my opinion, this assumes too much about acturus and deducturus. These two words would be perfectly at home in an ordinary vadimonium. Consider the meaning of acturus first. There are, admittedly, texts to support many different meanings for agere. But there is one very common technical use of the term. Agere is often used to describe the plaintiff's status at and after litis contestatio. Consider these two texts:

Plane si ex altera earum [obligationum] egerit, utramque consumet, uidelicet quia natura obligationum duarum, quas haberet, ea esset, ut, cum altera earum in iudicium deduceretur, altera consumeretur. Julian, in Ulpian, ad Sabinum, book 46 (D.46.1.5).

Clearly if he should sue on one obligation the other will be consumed, simply because the nature of the two obligations that he has is such that, when one is brought to joinder of issue, the other is consumed.

Procurator vero si agat, satisdare iubetur ratam rem dominum habiturum. Periculum enim est ne iterum dominus de eadem re experiatur. Quod periculum non intervenit si per cognitorem actum fuerit, quia de qua re quisque per cognitorem egerit, de ea non magis amplius actionem habet quam si ipse egerit. Gaius, Inst. 4.98.

But a procurator bringing an action is required to give security for the future ratification of his acts by his principal. For there is a risk that the principal may sue afresh on the same claim, a risk which does not exist where it is a cognitor who has brought the action, because on any claim on which one has sued through a cognitor one has no more a further action than where one has brought the action onself. [trans. de Zulueta]

Both of these texts are speaking about res judicata, and in particular when a person can be said to sue on the same case twice. The specific context is unimportant for our purposes. What is important is the fact that the moment of consumption is when the plaintiff agit. He does so at litis contestatio. On this meaning of agere, there is no agere when the plaintiff simply comes before the magistrate. So when we see acturus in the vadimonium tablets, it is telling us simply that the plaintiff intends to participate in litis contestatio. The acturus language is therefore perfectly suitable to an ordinary vadimonium. What I have just said about the tense of acturus is of course even clearer in the case of in iudicium deducturus (TPSulp. 3). We know that these words refer to litis contestatio. There is one further matter of internal evidence that needs attention. It concerns the language of TPSulp. 3. Along with the stipulation for 50,000 sesterces, the tablet says that the suit itself is actually worth more than 50,000. The question naturally arises, if the suit is worth more, why not set a higher sum? Gaius gives one possible answer: he says that some vadimonia could not set a penalty higher than one-half the value of the lawsuit. But according to some, this is not a solution. We would have to understand that the suit is worth 100,000 sesterces or more, and that when the document says 'more than 50,000', it really means '100,000 or more'. Some of those who point this out then go on to argue that this is proof that this document is a Ladungsvadimonium. They argue that the penalty in the stipulation is probably about the same as the amount at issue in the lawsuit, and since this could never happen with an ordinary vadimonium, this must be a Ladungsvadimonium. I think a better solution to this problem - why this 'greater than' language is included - was proposed a few years ago by Professor Dieter Nörr. He suggested that Faenius was worried about losing the opportunity to exceed the 50,000-sesterces figure. I think we can amplify the solution a little bit. This is an actio ex empto, so it is a good-faith action, and the intentio is for an uncertain sum. The plaintiff here has taken special trouble to say that this is an actio ex empto, and it is not too unreasonable to imagine that a vadimonium in a good-faith action required special care. The case is going to go before a lay judge, and the judge is going to have to determine how much in good faith the defendant should pay to the plaintiff. And the defendant may wave the vadimonium in the judge's face and say 'look - he only bailed me for 50,000 - that's what it's worth'. And the judge, who may not be aware of the intricacies of how a vadimonium is calculated, may be influenced by what he sees. The question then becomes, why does the second vadimonium in this case (TPSulp. 3) contain the 'greater than' language, but the first one (TPSulp. 2) does not? Did it just occur to the plaintiff one day to add this language? It seems to me easier to explain the discrepancy between these two documents if we imagine that both of them were drafted under the supervision of a magistrate, in the course of successive hearings. If they were drafted under the supervision of a magistrate, then we do not have to attribute the discrepancy to oversight, but perhaps instead find some legally sound reason. For example, perhaps at the first hearing the magistrate was not satisfied that the case would proceed as far as litis contestatio. He would still have to order the defendant to reappear, but he might not permit the plaintiff to insert 'rem in iudicium deducere' into the document. One gets the impression that the lawsuit has progressed from the reference to a ring in the second document. Perhaps the magistrate was now satisfied there was a case to answer, on proof of a down-payment. Such conclusions of course require some speculation. But my point is simply that one can look at these two documents to see a lawsuit progressing, rather than seeing a plaintiff who has just changed his mind about what he wants his defendant to promise. My final point is really only a footnote to the discussion this far. It is something I have addressed elsewhere [120 ZPE 215]. We have various sources which suggest that vadimonia - which is to say ordinary vadimonia, vadimonia that interrupt proceedings before a magistrate - would commonly interrupt proceedings for three days. It is not quite clear under the sources exactly when three days was used in preference to some other number of days, but the relationship is there. The three-day interruption is significant, because several of our Puteoli vadimonia are in fact 3-day vadimonia. Unfortunately, most of the surviving vadimonia do not show the two essential pieces of information: the date of execution, and the date of appearance. But six of the documents do show these two pieces of information, and of these six, three documents -- which is to say, fully half of the available documents -- describe three-day vadimonia. There is a very strong suggestion that at least these three documents are not Ladungsvadimonia, but must be ordinary vadimonia. And if half of the available documents are ordinary vadimonia, chances are that some of the less well-preserved documents are ordinary vadimonia as well. To sum up briefly. I have argued that some or all of our store of vadimonia documents may not be Ladungsvadimonia. I have argued, first, that some of the language that seems to mark these documents as Ladungsvadimonia doesn't necessarily mark them in this way, and second, that a few specific documents seem clearly to be ordinary vadimonia.