The historical background and evolution of security for costs

2.1. A version of security for costs – the legis actio sacramentum – existed in Roman law from before 450 BC in the form of a deposit paid by both parties, with the victor’s being returned and the vanquished’s forfeited to the temple.1 In Europe, security for costs – or cautio judicatum solvi – existed by statute in many states.2 This practice became forbidden by a series of treaties and court decisions where the sole basis of the cautio was the residence of a plaintiff in another contracting state.3 Article 6 of the Treaty of Rome prohibits any discrimination on the grounds of nationality.4 The substantive contract law of countries such as Switzerland and Germany forbade cautio being awarded either absolutely, or unless there was a change in circumstances from the time of contracting.5 The facility disappeared wholly from French procedural law by two statutes, one in 1972 and another in 1975.6