Legal Procedure

Question 1

Three different types of legal action under Roman law

Answer 1

1) Legis actiones
2) Formulary system
3) Cognitio procedure

Question 2

Legis Actio system

Answer 2

Original procedure for bringing a claim under Roman law. Comprised of a two-stage system:

1) Litis contestatio - this involved the joinder of issue, where the correct procedure was established before the praetor.
2) Full trial - this was conducted by lay judges. Relied on jurists for technical legal matters but generally were distinguished figures in the community who applied common sense in resolving disputes.

Question 3

Summons of defendant

Answer 3

This was the same for both the legis actio system and formulary system. There was no state enforcement mechanism for ensuring that the defendant arrived at court under the legis actio and formulary system - C was entitled to use force to bring D to court if they refused, but this relied on the economic position of C being able to do so.

Question 4

Legis Actiones

Answer 4

There were 5 legis actiones listed by Gaius, although the latter two were closer to methods of enforcement.

1) Sacramentum.
2) Posulatio.
3) Condictio.
4) Manus iniectio.
5) Pignoris capio.

Question 5

Legis actio sacramentum

Answer 5

Most commonly used traditional legis actio whereby each party was required to make a deposit of money backing their claims in relation to formal oaths. Wager was to support the oath made to the gods that each party had the truer claim.

Question 6

Iudicis postulatio

Answer 6

This was a more efficient and less formal claim than the sacramentum, although was less widely available - postulatio was only allowed to be used in lieu of sacramentum where legislation provided for it.

Postulatio required C to make his claim and ground of action, with D either conceding or denying the claim.

Question 7

Condictio

Answer 7

This was similar to postulatio, in that no formal deposit was required as wager, or formal oaths by the parties. If D denied the claim, C would give notice (condictio) that D should appear in 30 days for naming of a judge.

Condictio was a more specific legis actio claim used for claim a specific thing, typically a sum of money. Introduced to reflect the need for a more convenient procedure for claiming money in light of growing Roman economic activity.

Question 8

Manus iniectio

Answer 8

This permitted C to imprison D if they refused to comply with a judgment. TT stated that D could be imprisoned for 30 days after the judgment; after this, C could sell D into slavery to recover his losses.

Question 9

Pignoris capio

Answer 9

This involved specific claims, e.g. soldiers seeking pay. It was the only form of legis actio which did not take place in front of a judge - C would instead take the object and hold it under a pledge.

Question 10

Problems with legis actio system

Answer 10

1) Inaccessible - sacramentum, the most common claim, required a deposit of money as a wager. If C lost their claim then they also lost this money, so it was only available to those with some form of capital/financial resources.
2) Inflexible - very rigid in terms of formalities. E.g. C’s claim failed, regardless of merit, at the litis contestatio stage if they brought the wrong type of claim.

Question 11

Formulary system

Answer 11

Gaius suggested that the formulary system was introduced under the lex Aebutia in 140 BC. However, according to historical evidence and academic opinion, this is no longer thought to be the case.

Generally accepted that the formulary system was introduced long before 140 BC. Peregrine praetor (est. 242 BC) introduced a new claim for foreigners since the growing commercial activity required a more efficient means of resolving disputes. Urban praetor simply adopted this procedure when it proved to be more effective.

Question 12

Lex Aebutia

Answer 12

Real effect of the lex Aebutia was to formally recognise practice which had been in existence for some time - that formulae should be used instead of legis actiones in the court of the urban praetor, with the possibility that D could still insist on using one of the legis actio claims.

Question 13

Leges Iualia Iudicariae

Answer 13

18BC.

Under Augustus, it is now thought that this legislation formally abolished the legis actio system in the court of the urban praetor - only formulae could be used after this.

Question 14

Formulae

Answer 14

Formulae were standardised written pleadings which contained an exhaustive list of the key elements of a claim. The formula had to include the basis of C’s claim, and any possible defences that D might have.

Note that the formula was exhaustive in that the lay judge was required to either condemn or absolve D under the terms of the formula. Thus, the judge could not condemn D for something that was not included in the terms of the formula - shows that some rigidity and formalism continued in the formulary system.

Question 15

Formulary system - structure

Answer 15

Formulary system carried forward the bipartite structure of litigation from the legis actio system. First, the preliminary proceedings were conducted by the praetor - C presented a draft formula with the essentials of the claim, and D was allowed to make any amendments or suggest clauses to include. Once this was accepted, the trial was conducted by the lay judge.

Question 16

Clauses in formulae

Answer 16

1) Nominatio - name of the lay judge.
2) Intentio - clause which expressed the substance of C’s claim.
3) Condemnatio - judge was asked to condemn D under the terms of the formula in this clause. Had to provide for both absolving and condemning D.
4) Demonstratio - some formulae contained this clause between the intentio and the nominatio in order to more clearly define C’s claim.
5) Exceptio - this was an exception clause included at D’s request to narrow the scope of available evidence to the judge.

Question 17

Interdict

Answer 17

Order issued by praetor that someone should stop doing something, merely on the command of the praetor. It was a set of expectations as to how the praetor felt parties should behave.

Idea was that the interdict would generate litigation if D did not comply with the interdict.

Question 18

Restitutio in integrum

Answer 18

This was a praetorian remedy. Rescission= order nullifying a transaction and returning the parties to their original position.

Person seeking rescission had to show he suffered some proprietary loss or had incurred some future commitment through the transaction.

Question 19

Praetorian stipulations

Answer 19

These were formal promises made between the parties as a result of the praetor’s intervention in a dispute. Praetorian stipulations were binding promises made between the parties in front of the praetor - they could either take place inside or outside of the case itself.

Question 20

Cognitio procedure

Answer 20

This was a third system of litigation introduced some time into the Roman Empire. Formulary system remained until 342 AD, but had become disused long before then.

Distinctive feature of cognitio = whole trial conducted by a magistrate, who was a legal official (rather than a lay judge). Bipartite system abolished - magistrate conducted both elements in one trial.

Systematic appeals system also existed during the cognitio procedure. Magistrates who heard the cases were subordinate to the courts of the city prefect and chief of the praetorian guard. Appeals could technically go as far as the Emperor, but he generally heard fewer appeals himself. Justinian ruled that a decision could not be appealed more than twice.

Question 21

Summons of D - Cognitio

Answer 21

This was another aspect that changed under cognitio. C lodged written statement of complaint and D was sent a copy and ordered to appear in court on a certain date. If D failed to do so, it could result in his arrest.

Question 22

Missio in possessionem

Answer 22

This was another praetorian remedy in the formulary system = distraint. Distraint was an order authorising the seizure of D’s property. Generally entitled recipient to take possession of D’s property in order to ensure they did or abstained from something.