Sanction for the non-confessing debitor. Litiscrescence in Roman law

Abstract

In Roman law, a defendant could usually deny the plaintiff’s claim without the risk of any danger. However, in certain cases, the non-confessing debitor had to face a sanction. Roman jurists described these special cases with the words poenae temere litigantium (penalties for frivolous litigation). In the context of poenae temere litigantium it is also important to mention the phrase infitiando lis crescit in duplum, which expresses that litigation doubles if the defendant denies his liability. Actions with litiscrescence are enumerated in Gai. 4.9, Gai. 4.171, and PS 1.19.1. Neither Gaius nor the author of the Pauli Sententiae mentioned whether these lists are conclusive or non-exhaustive. Therefore, (possible) cases of litiscrescence in classical Roman law need to be analysed. In this context, it is necessary to consider a similar case of a double penalty in archaic Roman law: the liability of a vindex who lost a lawsuit against a creditor. This article poses the following main questions: How many actions with litiscrescence existed in classical Roman law? Do the classical cases of litiscrescence have anything in common? And if so, is there a connection to the previous legal situation in archaic Roman law?