Kitap 3
5.72
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.
5.73
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.
