DiiHstum. It must be emphasized that, despite initial appearances, the matter is pureK’ secular. No deit\’ is asked to interxene, no magic is imoked, the penaltx' is in mone\', and the action is o\ er ownership or some other nonreligious issue. True, the issue before the judge is whose oath is true and whose is false, hut that is decided soleK' h\' the sectdar legal question of who is owner. The oath is adopted jmrel\' as a dex ice to bring a secular dispute to an "official" hearing. d'he truth or otherxvise of an oath xvould depend on xvhose oxx - nership (sax’, of a slax e) xvas prox ed: hx’ birth to a slax e xxoman oxx ned hx one partx’, hx’ succession, hx’ formal delixerv of oxx nership. But for present purposes, the x ital point is that the trial proceeds on the xeracitx’ of the oath. The oath is either true or false, fhere is no roomfor compromise in the decision, fhe judge has to decide x\ hoilx for one partx or the other. One has sxvorn justlx’, and the other has not. .And the issue has to he decided on the basis of secular laxx. Where the law is not clear, the judge must still decide one wav or the other, and clear-cut legal rules xvill of necessitx’ emerge (perhaps from a number of cases). The procedure demands claritx’ of laxv. Once begun this xxay, the demand for absolute clarity in the decision continued in the other old Roman legis actio forms of procedure. kh entuallx these forms of action xvere replaced h\' a more fle.xihie sx’stem, the formulae. .At the beginning of his xear of office, the praetor, xxho xxas in charge of the court, xvould set up an I’Aiict that gaxe a model form {formula) for each tx’pe of action that he xvould alloxx'. For an action to he permitted, the alleged facts had to ft xvithin the parameters of a formala. For e.xample, there xvas a formula for sale. (Questions arose as to xvhich agreements xvere sale. If the agreement xxas that I should gix e x’ou mx farm in return for one million .rc.r/cr/// plus mx' use for fix e x ears of a market-garden of yours, is this sale.^ Or if I agree to give x’ou mx’ home in return for x’our slax e girl. 61
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