Institutio Oratoria

of fact.

You have no right to bring an action against me, as it is impossible for you to have been appointed to represent the actual plaintiff.

It then has to be decided whether he could have been so appointed.

You ought not to have proceeded by interdict, [*](sc. by getting an order for restitution. ) but to have put in a plea for possession.

The point in doubt is whether the interdict is legal. All these points fall under the head of legal questions.

not even those special pleas, in which questions of competence make themselves most evident, give rise to the same species of question as those laws under which the action is brought, so that the enquiry is

really concerned with the name of a given act, [*](e. g. murder or manslaughter: sacrilege or theft. ) with the letter of the law and its meaning, or with something that requires to be settled by argument? The basis originates from the question, and in cases of competence it is not the question concerning which the advocate argues that is involved, but the question on account of which he argues. [*](See § 70.)

An example will make this clearer.

You have killed a man.

I did not kill him.

The question is whether he has killed him; the basis is the conjectural. But the following case is very different.

I have the right to bring this action.

You have not the right.

The question is whether he has the right, and it is from this that we derive the basis. For whether he is allowed the right or not depends on the event, not on the cause itself, and on the decision of the judge, not on that on account of which he gives such a decision.