Civil procedure: the formulary system

As elaborated in Chapter 3, the earliest form of civil procedure in Roman law was the legis actio, so called because the only actions allowed were those created by statutes (leges), or closely adapted to the language of statutes by the pontiffs. Under the changed socio-economic conditions of the late Republic, the legis actio system gradually fell into disfavour. This mainly derived from its exaggerated formalism and the prominence of a new and more flexible system: the formulary (per formulam) procedure. The formulary procedure was probably first introduced by the praetor peregrinus as a way of dealing with disputes involving foreigners. Its application was subsequently extended to cases where both parties to a dispute were Roman citizens and the legis actiones were not available under the lex Aebutia passed in the second century BC. The reform of civil procedure was completed by the leges Iuliae iudiciorum publicorum et privatorum of Augustus in 17–16 BC.1 One of these laws abolished the legis actio procedure, except in cases that fell within the jurisdiction of the centumviral court and in certain cases involving a threat of damage to another person’s property (damnum infectum).2

Under the new system, the praetor was free to go beyond the strict letter of the law and accept or refuse a claim on the grounds of what he deemed right and equitable. He did not accomplish this by introducing new legal rights (as indicated earlier, the magistrates had no legislative powers). Rather, he granted the claimant an action and promised to grant a remedy if the facts forming the basis of the claim were validated in the subsequent trial. As in Roman law a right was regarded as a legal right only if it was enforceable by a recognized process of law, by introducing new remedies the praetor was actually creating new legal rights. The praetor’s extensive use of the right to regulate the forms of proceedings accepted in court enabled him to eliminate or reduce the unwanted effects of the antiquated rituals attached to the old ius civile. At the same time, he created a supplementary body of law based on common sense, expediency and fairness, the ius honorarium or ius praetorium, capable of supporting ethical and technical change.

The formulary procedure derives its name from the formula, a written document containing an exposition of the dispute between litigants and instructions from the praetor to the judge (iudex) assigned to try the case. In contrast to the legis actio procedure, where the plaintiff selected the relevant legis actio at his own risk, the magistrate at the request of the party concerned issued the formula in the formulary procedure. When it was requisite to introduce a new formula to address hitherto unfamiliar facts, the praetor did so by issuing the appropriate decree in his edict. Thus, he established various formulae that were moulded by the nature and circumstances of the dispute, and each had its own wording. The forms of action connected with these formulae were termed actiones honorariae, i.e. actions derived from the ius honorarium.3 The vast majority of the actiones honorariae were praetorian creations, although several important actions were created by lesser magistrates such as the curule aediles. The actiones honorariae were distinguished from the actiones civiles, i.e. the actions originating from the ius civile. Several actiones civiles were established by legislation, whereas others crystallized from the creative activity of the jurists. When a formula pertained to an actio civilis, it was designated formula in ius concepta, in contradistinction to a formula in factum concepta that related to an actio honoraria.4

The principal forms of action employed by the praetor to deal with cases not covered by the existing law were the actiones in factum, the actiones utiles and the actiones fictitiae. An actio in factum (action based on the facts of a particular case) was an ‘ad hoc’ new action granted to an aggrieved person in a case where neither the ius civile nor the praetorian edict were useful and the case situation justified the furnishing of a remedy on equitable grounds. When such an action was allowed, the actual facts of the case were incorporated into a new formula (formula in factum concepta). An actio utilis (‘adapted’ or ‘analogous’ action)5 was devised by the praetor to tackle a case not covered by the existing law that was analogous to another case with an available legal remedy. Consider the following example: under the lex Aquilia (early third century BC), an action was available in a case where a person caused injury to another by directly attacking vi et armis the latter’s body or property. But the statute did not encompass cases where the injury was caused indirectly, such as when an animal was frightened off a precipice by shouts. However, in such a case the praetor could grant an action (actio utilis quasi ex lege Aquilia) to the injured party by adapting the actio legis Aquiliae.6 Related to the actio utilis was the actio fictitia (action based on a fiction), which enabled the praetor to extend the operation of an existing action by using a fiction, so that a particular case not covered by the relevant action was placed within its scope. The relevant formula instructed the iudex to assume that certain facts were present or absent in the presented case, depending on the circumstances of the particular case. For example, if the parties to a dispute were not citizens of Rome, they could access certain actions of the ius civile (e.g. the action for theft: actio furti) through the addition to the relevant formula of the phrase ‘as if they were Roman citizens’. Another example of an actio fictitia is the actio Publiciana. As mentioned earlier, this action enabled a person to reclaim a res mancipi when they had acquired it in an informal manner (e.g. by mere traditio) and lost possession. Even though they had not yet obtained title, this action was available if they proved that the property was acquired under conditions that placed them in the position of acquiring ownership by usucapio (i.e. by remaining in undisputed possession of the property for a certain period of time). This action was an actio fictitia as it fictitiously presumed the completion of the period of usucapio.7

The formulary system featured an important division of actions that had a correlation with the judge’s discretion: the division between actiones stricti iuris and actiones bonae fidei. In actions stricti iuris the relevant formula had to be strictly construed and the judge could only consider the matters it contained. This category embodied actions based on unilateral contracts, such as the stipulatio8 where the promisor was bound to the precise object promised.9 On the other hand, the actions bonae fidei presented the judge with a greater latitude of discretion, whereby he could take into equitable consideration all facts relative to the case whether or not these were stated in the formula. This power was granted by the praetor through appending the clause ex fide bona (in good faith) to the formula. In bonae fidei actions the judge could scrutinize the true intentions of the parties. He could consider any equitable defences, even if these were not expressly pleaded, as the formula in these cases instructed the judge to ascertain what the defendant ought to do or give ex bona fide and to condemn accordingly. Actions bonae fidei encompassed those arising from real or consensual contracts, such as emptio venditio (sale), locatio conductio (hire), mandatum (mandate) and societas (partnership). During the later republican period, contracts where the parties’ obligations were determined according to the requirements of good faith emerged to play an essential part in economic life.10

The formula as such was composed of various clauses or sub-divisions, but not all had to exist in every formula. According to Gaius, the clauses that normally appeared in a formula were the demonstratio, the intentio, the condemnatio and the adiudicatio.11 In addition, the appointment of the judge (nominatio iudicis) was always inserted at the commencement of each formula. The demonstratio usually appeared at the beginning of the formula (directly after the appointment of the judge) and constituted a concise statement of the facts or circumstances on which the claim was based. This part of the formula always began with the word ‘quod’: inasmuch (e.g. ‘inasmuch as the plaintiff deposited a silver table in the care of the defendant … ’).12 Next appeared the intentio that formed the most important part of the formula as it set forth the precise claim or demand of the plaintiff. It started with the phrase ‘si paret’ or ‘quidquid paret’: ‘if it appears’, ‘whatever it appears’. Depending on whether or not the object of the claim was clearly identified, an intentio could be determined (certa) or undetermined (incerta). An example of an intentio certa would read as follows: ‘If it appears that the defendant ought to pay the plaintiff the sum of 1,000 sestercii … ’. On the other hand, an intentio incerta would be worded in this manner: ‘whatever it appears that the defendant ought to pay to the plaintiff … ’ In actions relating to the enforcement of a personal right (actiones in personam), the intentio contained the names of both the plaintiff and the defendant. In actions pertaining to the enforcement of a real right (actiones in rem) only the name of the plaintiff appeared (e.g. ‘if it appears that the slave belongs to Aulus Agerius in accordance with civil law … ’). The third part of the formula was the condemnatio, which delegated to the judge the power to condemn or acquit the defendant. It is significant that the condemnatio was always directed at an amount of money (condemnatio pecuniaria), which might be determined (certa) or undetermined (incerta). In the latter case, the judge was authorized to use his discretion in specifying the amount of money owed.13 The condemnatio was replaced by the adiudicatio in actions relating to the division of common property (actio communi dividundo), or the division of property among co-heirs (actio familiae erciscundae), or the determination of the boundaries of land (actio finium regundorum). The adiudicatio was a component of the formula that authorized the judge to effect a division and to determine an award.14 It was usually worded in this style: ‘whatever part ought to be adjudged to any one of the parties, do you, judge, adjudge it.’ A formula always included an intentio and a condemnatio (or adiudicatio). Exceptionally, actions concerned with preliminary matters upon which a subsequent lawsuit depended (actiones praeiudiciales) only included an intentio and not a condemnatio. For example, a patron seeking to sue his freedman for failing to perform his duties could initiate a preliminary action to determine whether the defendant was actually a freedman. Such an action was not concerned with the condemnation of the defendant but with simply providing an answer to the question raised.15

Besides the standard clauses outlined above, a formula occasionally contained additional clauses such as reservations (praescriptiones) and one or more defences (exceptiones) and counter-defences (replicationes) raised by the defendant and the plaintiff respectively. The praescriptio was an extraordinary clause that a litigant could elect to have inserted in the formula (directly after the appointment of the judge and before the intentio) when he wished to precisely limit the extent of the claim. Two kinds of praescriptiones were distinguished: the praescriptio in favour of the plaintiff (praescriptio pro actore) and the praescriptio in favour of the defendant (praescriptio pro reo). A praescriptio pro actore was applied, for instance, in a case where the plaintiff sued for an instalment of a debt while retaining his right to sue at a later date for further instalments. The praescriptio in such a case recited: ‘let the action be only for such things as are already due’.16 A praescriptio pro reo was applied, for example, when the defendant wished to express the reservation that a decision in the present case would have a prejudicial effect on the determination in a more important case (praescriptio praeiudicii). However, this form of praescriptio fell into disuse from an early period and was replaced by the exceptio. The latter was a clause in the formula inserted by the defendant before the condemnatio which contained an assertion that there were circumstances supporting a defence against the plaintiff’s claim. For example, a defendant might assert that he owed the sum claimed by the plaintiff but a special agreement entailed the plaintiff assuming the obligation not to sue for the money. In such a case, the defendant’s objection would be inserted into the formula as a negative condition: the judge may condemn the defendant ‘if there has not been an agreement that the plaintiff will not bring an action’. Depending on their period of operation, exceptions were divided into peremptory or perpetual and dilatory or temporary.17 A peremptory (peremptoria) exception could be invoked without a time limitation (exceptio perpetua). If a party failed to raise such an exception during the preparation of the relevant formula due to mistake, they could later seek the insertion of an exception into the formula.18 Dilatory or temporary defences, on the other hand, could be raised only within a limited period of time or under certain circumstances.19 Exceptions were further divided into exceptions based on the ius civile (exceptiones civiles),20 and those developed from the praetor’s activity (exceptiones honorariae).21 Significant among the exceptiones honorariae was the exceptio doli that emerged from the claim that the plaintiff had acted fraudulently (dolo). Another notable exception in the same category was the exceptio metus causa, the defence based on duress. The term exceptiones utiles referred to exceptions that the praetor had formulated on the basis of other exceptions located in the edictum perpetuum. Exceptiones in factum, on the other hand, were new exceptions granted by the praetor in response to claims not covered by the exceptions already recognized.22 The plaintiff could reply to the defendant’s exceptio by denying the facts that produced the defence, or by raising his own counter-defence against it. For example, the plaintiff might deny the defendant’s claim that the former had promised not to institute an action against him by asserting that this promise had subsequently been revoked, or was limited to a specific time period. The plaintiff’s counter-defence (replicatio) was also inserted into the relevant formula as an additional condition.23 The defendant could respond to the plaintiff’s replicatio by raising a further exceptio, now termed dublicatio. This sequence of responses would proceed until each party’s case was thoroughly stated.24 All the exceptions and counter-exceptions were inserted into the relevant formula. However, it appears that exceptiones were used less frequently due to the proliferation of the actiones bonae fidei, i.e. actions where good faith was explicitly taken into consideration.

Envisage a case presented to the praetor where the defendant had promised by a verbal contract (stipulatio) to pay the plaintiff 5,000 denarii, but failed to do so. In such a case, the plaintiff could initiate an action against the defendant known as condictio certae pecuniae. The formula for this action was elaborated in the praetorian edict and proceeded as follows:

Let X be the judge. If it appears that the defendant ought to pay to the plaintiff 5,000 denarii, let the judge condemn the defendant; if this does not appear, let the judge absolve him.

In this type of case, the judge was instructed simply to examine whether the plaintiff’s claim was true or not. The defendant could deny the promise to pay the plaintiff 5,000 denarii as a matter of fact or, if he admitted the existence of the promise, claim that he was no longer bound by it due to the presence of an exceptional circumstance. He might argue, for example, that the plaintiff had later informally agreed to absolve him of the debt. Pursuant to the ius civile, such an informal agreement did not invalidate the initial promise, yet the praetor could grant the defendant a plea that thwarted the plaintiff’s action (exceptio pacti). In this event, the defendant’s defence would be incorporated in the formula as a further condition:

Let X be the judge. If it appears that the defendant ought to pay to the plaintiff 5,000 denarii and if there was no agreement between the plaintiff and the defendant that absolved the latter from the debt, let the judge condemn the defendant; if this does not appear, let the judge absolve the defendant.

As stated earlier, the formulae for actions bonae fidei encompassed the clause ex fide bona (in good faith) as a supplementary condition. For example, consider a case where the plaintiff claimed that through a contract of sale (emptio venditio) he sold the defendant an ox, but the latter failed to pay the price. In such a case, the plaintiff could be granted an action (actio venditi) based on the following formula:

Let X be the judge. Inasmuch as the plaintiff has sold the defendant an ox, which matter is the subject of this action, whatever it appears that the defendant in good faith ought to give to or do for the plaintiff, let the judge condemn the defendant to give or do; if it does not appear, let the judge absolve him.

The course of the formulary procedure

Like the legis actio procedure, the procedure per formulam was divided into two distinct stages: before the magistrate (in iure) and before the judge (in iudicio, apud iudicem).

The procedure in iure

Prior to the commencement of the procedure, the plaintiff announced his intention to institute an action against the defendant (editio actionis). The announcement was issued extrajudicially and informally to notify the defendant of the claim and the type of intended action. Therefore, it presented him with an opportunity to settle the case out of court. In the next step, the plaintiff formally summoned the defendant before the court (in ius vocatio). A defendant refusing to appear with the plaintiff before the magistrate could be compelled to participate, even forcibly. This was averted if he could enlist someone to act as surety for him (designated a vindex) and hence ensure the defendant’s appearance in iure at a fixed later date.25 In later times, the defendant could dispense with using a vindex and simply issue a formal promise (vadimonium) that he would appear in court.26

When the parties appeared before the praetor, the plaintiff made a declaration regarding the nature of his claim and the evidence he proposed to present (editio actionis). He also requested the praetor to grant an appropriate action (postulatio actionis). The praetor refused to furnish an action (denegatio actionis

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