Legal wager
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In the Roman litigation system, while the Legis Actiones procedure was in force, during the early Republic, both parties had to lay down a wager at the preliminary hearing, probably to discourage frivolous litigation. It should be noted that, in some cases, if the party lost, the wager went to the other party, to compensate him for his inconvenience, rather than to the court to cover costs. There were three different types of legis actiones, and the wager differed in each.
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[edit] Sacramentum
This was the standard procedure for litigation under the legis actiones system, and was used whenever another procedure was not proscribed by statute. In this system, both parties had to lay down a wager of 50 asses, or 500 if the matter under dispute was worth 1000 or more. The wager of the winning party would be returned, but the loser's would be forfeited to the State. While the reasoning for this lay in theory in the idea of a sacrifice to the gods, its main effect was to discourage frivolous litigation, since the sums laid down as wagers were substantial.
[edit] Iudis arbitrive postulatio
This procedure (which was fully titled, "Legis actio per iudicis arbitrive postulationem", meaning, "the complaint before the judge or arbiter") was only used in some in personam cases, laid down by statute, and did not require any wager at all. It was therefore much less risky for the plaintiff.
[edit] Condictio
This was used from around the 3rd century BC for the recovery of a specific thing or specific sum of money (such as from a debtor). It did not require a wager as such, but the parties exchanged promises to the effect that the loser would pay to the winner one-third of the sum at issue - that is, if the plaintiff won, he received one and one-third of the sum, whereas the defendant received one-third of the sum if he won.
