As sanções processuais do direito romano à litigância temerária

Abstract

Just as the Brazilian Code of Civil Procedure (“CPC/15”) currently punishes vexatious litigation, in its Articles 79 to 81, the Roman lawyers also dealt, in their own way, with the problem of the so-called reckless conduct in the context of a lawsuit. As Gaius (Gai. 4, 171) describes, the behavior of both parties in a procedural relation could be sanctioned: both the temerity (“temeritas”) of the defendant and the chicanery or calumny (“calumnia”) of the plaintiff were subject to punishment. This paper deals with the institutes that, according to Gaius’ exposition (Gai. 4, 174 et seq.), in his manual “Institutiones”, were aimed, in the Roman law of his time, to punish the authors of frivolous or reckless actions. The text thus ranges from solemn promises (“sponsio” and “restipulatio”), from which an obligation arose for the losing party to pay the other a pecuniary penalty, to a religious oath against chicanery (“iusiurandum calumniae”). The paper also includes the iudicium contrarium, a more severe form of sanction, which, when employed by the defendant, imposed on the defeated plaintiff, regardless of fault, the payment of a sum of money, and the iudicium calumniae, designed to punish the plaintiff who, even though knew had no rights, brought an action.