Thomas 7The Formulary Process PDF

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Thomas 7: The Formulary Process ● Legis actiones survived because formulaires linked to patricians, but 3rd century BC: conflicts between class non-existent ● Developing commerce = praetor peregrinus had to devise procedure for resolution of disputes in transactions ● Lex Aebutia legitimated formulary system, already in use between curves, derived from ius honorarium (in ius - asserting claim known at civil law; in factum: incorporated in Edict) ○ Within 1 century - superseded legis actiones ○ Proceedings still began with vocatio in jus - D had to provide a vindex (defender) who would be liable to an action in factum (on point of fact) if he did not produce his principal in iure ■ No vindex = himself liable to action in factum and to missio in possessionem (P authorised to take over D’s property) ○ and in two stages - in iure and apud iudicem ○ INstead of oral injure, proceedings directed to obtaining a written formula synopsis of case - claim & defence - addressed to judge (or reach settlement) ○ Adjournments: parties give security (by verbal contract) for appearance at next hearing ○ Choosing judge: pre-agreed, or from praetor’s album ○ Available formulae set out in Edict, formula granted, handed by P to D = litis contestatio ○ Confessio in iure - if D concedes in iure, pro iudicata - treated as if judgment given against him/ indefensos (no proper defence) -> missio in possessionem ○ Indefensos also when P or D refuse to submit to iusiurandum calumniate (i.e. swearing good faith - making genuine claim/ resisting in gf) ○ Or could challenge existence of claim ○ Gave praetor great power - genegare actionem (refuse to grant), formulate new actions etc., increased flexibility to control the process in iure and conduct of case by judge in iudicio, could introduce praetorian remedies ■ Iurisdictio = authority to administer justice ■ Though consul, curule aediles, (& military tribunes) also had similar powers before ○ Proceedings before judge: ■ Cases presented by advocates - opening speech, evidence, party’s duty to get witnesses (no subpoena), cannot be close relations/ parties themselves ■ No formal rules of evidence, hearsay admitted; burden of proof on party who made claim ■ Judge usually will seek expert juristic advice

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■ If judge could not resolve issue (rem non liqueur), judge can be relieved and case transferred (translatio iudicii) ■ Judgments always for money until cognito ■ Assessment may be made by judge, or sworn by plaintiff - D could recover 1/10 of value of claim if other party sued in bad faith ■ Other judgments: ● Declaratory (whether one is a free man/ citizen) ● Abdication (allocate shares of property) - divisory actions ■ Even if judgment is wrong/not authorised by formula = final, no appeal ● Classification of actions: ○ Private - between individuals - title to a thing, contract, delict ■ Actions in rem - intentio of the formula (the claim)asserted right of P w/o mention of D (enforceable against everyone - e.g. property rights) ■ Actions in personam - intentio mentioned both parties, asserted duty of D to P (personal right to specific person - e.g. contract) ● Iudicia stricta - clearly denoted an obligation existing in civil law w/o further specification ○ Nothing can be considered by judge which was not incorporated in the formula, especially defences ● vs iudicia bonae fidei - issue was what ought to be done according to good faith ○ Liberalising of law with socio-economic pressures of commerce ○ Product of formulary system, praetor found ius civile inadequate and appealed to new standard of good faith (judgment of a good man - arbitrium boni viri) ○ Allowed defences inherent in formula that required no express defences - e.g. of fraud, of coercion or duress - since their nature were incompatible with bona fides ■ Divisory = in rem & in personam, if common project cannot be split adjudge thing to one party and order him to pay the other ■ Actio civilis - action to assert right in civil law ■ Actio honoraria = from authority of praetor ● E.g. fictitious/ fictitious - adaptation of civil actions to cover cases - Rutilian formula: intentio asserts claim of P against D, but condemnatio directs judge to give judgment against another person ○ Fictitious actions = utiles ○ Being owner in Roman law = some mystical element, recognising non-Romans as owning property is by creating fictions that brings them within current law ○ Utiles - because it is to make sth possible 2

■ Actions in factum = introduced by praetor in Edict, but could not postulate existing legal right as praetor had no power to change law, only postulate a conditional statement of a factual situation with a direction to the judge ■ Actions directaeed: existing at civil law/ provided in Edict ■ Actiones utiles: extensions of existing action ■ Perpetual (perpetuate) and limited availability (temporales) ● Most civil right of action enforceable at any time ● Praetorian actions limited to 1 year’s efficacy - e.g. mixed actions (actiones mixtape) - compensation + penalty ○ Ad rem prosequendum: actions for compensation ○ Ad poenam prosequendum: actions for penalty ● Exceptions: actio auctoritatis ■ Whether transferable to heirs - actions ad rem prosequendum can be brought by & against heirs, penal actions cannot be instituted against heir of wrongdoer unless he had personally been enriched ● But once litis contestatio taken place - death does not prevent continuation of proceedings ■ Iudicia legitima - between cives before single judge at Rome reflects original ambit of Roman jurisdiction, no limit until lex Julia judiciaria provided that they must be completed within 18 months from litis contestatio ● But Theodosius (30 years) and Justinian (3 years) limited time between initiation and completion of proceedings ■ Judicia quae in imperio continentur - everything but iudicia legitimacy, rests on magistrate’s imperium ○ Popular - social control, criminal law ■ Any member of public could bring proceedings - e.g. despoiling grave ● Parts of the Formula ○ Lex Aebutia legitimated the formula, gave praetor power to afford better justice - refuse actions/ create new parts to insert into formula ○ Part 1: nomination iudicis - nomination of judge (or arbiter) ○ Part 2: demonstratio: in actions claiming an incertum - claim w/o specific sum of money/ quantity, explanatory clause to set out P’s claim/ transaction involved (formula allowed praetor to rectify defect that contract stipulating a sum of money/ a particular thing may not be enforceable in same way as that stipulating something be done); ■ classical period = ran together with intentio ■ Not found in actions in rem/ in factum ○ Part 3 - Intentio: ■ Statement of claim showing kind of action ■ In rem: no mention of D; in personam: both parties mentioned

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■ In factum: posited the factual situation which the judge had to find established ○ Part 4 - Condemnatio: ■ Direction to judge, often for damages/ sum of money ■ Certum: for the sum of money claimed - assessment of amount can be at time of judgment or at litis contestatio ■ Incertum: for what D ought to do based on P’s interest ■ Can also involve infamia - civil degradation involving severe legal disabilities ■ Clausula arbitraria: judge condemn only if dispute not restored as he directed, e.g. action for production of a disputed thing (to ensure return of the thing) ■ Taxatio: upper limit on damages awarded - at D’s disposal/ can be afforded (often for relief of D) ○ Exceptio: only when D admit validity of claim and attempt to neutralise the claim ■ Inserted after intentio ■ Must be expressly inserted in formula in stricta iudicia, except inherent ones like those incompatible with bona fides ■ E.g. when matter had already been litigated, in contravention of statutes ■ Later regarded as dolus for P to press a claim to which he was aware that a defence could be raised ■ Usually can absolve D if successfully established ■ Exceptions = praetorian form, can be given after investigation, or framed by praetor having heard D’s story ■ Peremptory defences went to merits of the dispute, available whenever ■ Dilatory defences of limited efficacy - e.g. against P’s advocate, underage (defence lasts until coming of age) ■ Exceptio as counterbalance to intentio - e.g. defence f being coercion, P’s replication (positive reply) and D’s triplicate (another negative assertion) to exhaust allegations ○ Praescriptio: ■ Preliminary part, in favour of P (pro active) or D (pro reo) ■ Can limit the action to what was due/ part that had fallen to be performed ■ Helped develop innominate contracts ● Representation in Litigation ○ Legis actiones - no representation, in person ○ Formula: cognitor, procurator ■ Soldiers, women, and infames barred

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■ Cognitor: appointed in presence of opponent- actus legitimus (act in law) - substitute for his principal, took over action, but judgment affected principally by end of Republic ■ Procurator: appointed informally, no need presence of opponents, principal had to give security at appointment that judgment would be honoured ■ Cognitor disappear by Justinian’s time, procurator bound his principal ● Litis Contestatio - contestation of suit ○ Formula like contract, set terms ○ Destroys obligation if same claim made again ○ Actio plebisctia - action, defence , judgment working in sequence ○ Actio plebisctia - action, defence , judgment working in sequence ○ If object transferred infomrally w/o complying with ceremony, original owner may be able to sue new owner - active publiciana - claim (give me my horse), defence (no formal), reply => need all 3 for right outcome to be reached ■ Bonetary owner beat owner, owner cannot raise claim again, crystallises result - this is just saying every legal problem has a cause, and causa can only be acted upon once - reaches litis contestaio = crystallises (exhausted means, not like appeal) ○ Exceptio: renewed litigation eadem res: same object; Eaedem personae: same parties; Eadem Causa: same cause of action ○ Theft may constitute both a delict and a breach of contract, praetor would ensure P chooses one or the other action, to prevent plurality of remedies ○ Destroyed cause of action in classical law - joinder of issue froze situation between parties (cognito procedure: can try again) ○ Iudicia legitima (regular trial) no longer exist in cognito ● Plus/ Minus Petitio: ○ Over-claim in intention = lose action ○ Plus petitio = claim too much ○ Plus petitio tempore: claim before something is payable ○ Plus petitot loco: claiming in the wrong place ○ Plus petitio causa: ignored option open to D ○ If claiming the wrong thing does not lead to loss of cause of action, but only present action ○ Minus petitio: claiming less than was due -> limited to that claim in current action but can bring new action for the rest during office of same praetor; ignored in cognitio ● Compensation ○ Classical roman law: debt on another transaction does not affect compensation - every obligation was separate ○ P does not need to take account of counterclaims

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○ Marcus Aurelius - exceptio doli to set off debts for D as that on which he was sued ○ Agere cum compensation - banker suing client still had to allow for anything (overdraft, balance, etc.) he owed the client or else plus petitio ○ Bankrupt person should only be made liable to debtor for sum that exceeds that owed by the debtor to the bankrupt ○ Justinian recase the law, cognito - reduction of claim by counterclaim ● Execution of Judgments ○ Creditor can take debtor again before preator if no payment in 30days, debtor can only object to validity of judgment not its merits ○ Praetor can authorise creditor to physically seize debtor, confinement to work off debt ○ Venditio bonorum: execution could be levied on debtor’s property, debtor becomes infamis if debtor still doesn't pay within 30 days; if voluntarily offers to sell - cessio bonorum -> immune from personal seizure ○ Distractio bonorum - for elevated status debtors - only sufficient goods sold to pay off

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Ttypicallyactiones directae: case deserves attention, give remedy on one-off basis unless edict already looked dow

Need to know the actions themselves, can put into groups, or create list and memorise it

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