Roman Law of Actions: Procedures, Property, and Legal Concepts

Law of Actions

Factors Discouraging Litigation

Roman citizens had a deep sense of duty and responsibility concerning the involvement in legal processes, but litigation could cause many perils, such as:

• lose your reputation
• sheer abuse that you would suffer from your opponent's advocate

Roman advocated were skilled in the Greek rhetorical method of oratory that they could use in both stages of the trial.

The system of procedure was a major disincentive to involvement in litigation, due to the fact that the State's involvement in civil procedure was minimal; litigation was essentially a private arbitration established under the approval of the State.

In certain types of action the parties were obliged to deposit a sum of money as a wager on the outcome of the case; this was a major hurdle for some litigants, because just the winner would have recovered the deposit.

Roman legal system was imbued in corruption: some praetors were known to bend the rules to suit themselves and their friends, other of them did favors for wealthy litigants. Corruption was the most important practice that Roman authors criticized in their works, due to that the praetorship had lost prestige.

It was common the practice of flagitatio, which was a ritual shaming. If a man was suspected of dishonorable conduct he might be subjected to concerted shaming intended to cause him the maximum public embarrassment.

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Due to that factors it is clear that judges used to discourage the parties to proceed to judgment. It was common to settle the disputes; settlements were specific contractual remedies that were enforced in order to avoid proceedings.

Forms of Procedures in Roman Civil Law

In Roman civil law three different forms of procedures were admitted, each one in a different period of time:

• procedure per legis actiones

it was created in the archaic age;

• procedure per formulas

it was created in the preclassical age;

• cognitio extra ordinem

it was created in the classical age and it lasted till the age of Justinian

Roman civil law process was featured by a clear difference between:

• the magistrate who held a public office and were elected by Roman citizens
• the judge was a public citizen to whom the magistrate entrusted the duty to judge the case.

Procedure per Legis Actiones

Concept of 'Actio'

In Roman law the whole proceeding turned around the concept of 'actio', which is defined as: the right (ius) to claim in a trial (iudicio) something that was due (debeatur).

The distinction between actio and ius, could be intended as the distinction between procedural law and substantive law. In modern thinking substantive law is conceived as a necessary ground for procedure, so a trial can begin only if it is founded on substantive law. In Roman law this perspective is totally inverted, the actio could be created no matter what from the existence of a certain subjective right, actio could be created by the ius, the lex or the praetor.

Main Characteristics of Legis Actiones

The main characteristics were:

• Formalism -> they were based on a specific ritual, the party who did not respect it would have lost the trial;
• Uniqueness -> they could be used only for the kind of claim for which they were created;
• Orality
• Availability reserved only to Roman citizens
• Presence of both plaintiff and defendant before the magistrate -> if the defendant refused to appear before the magistrate after the plaintiff's summon (in ius vocatio), he could be physically dragged by the same plaintiff; no trial could start unless the two parties were present or represented;
• Division in two phases -> in iure (before the magistrate) and apud iudicem (before the judge)
• Typicality -> each actio was specifically admitted in the Roman law, so there was only a limited list of them, there was not a 'general' actio that could be used for all purposes. However this did not keep some actiones from having a wider scope.

Types of Legis Actiones

Declarative ascertain if the claim of the plaintiff was or was not founded

• legis actio sacramenti
• legis actio per condictionem
• legis actio per iudicis arbitrive postulationem

25Executive put directly the claim of the plaintiff into effect

• legis actio per pignoris capionem
• legis actio per manus iniectionem

Distinction Between Actiones in Rem and in Personam

There was a fundamental distinction between:

Actiones in rem ↓ the claim of the plaintiff is erga omnes (towards everybody) which means that the actio could be brought forth against everybody

Actiones in personam ↓ the claim of the plaintiff (creditor) is towards the defendant (debtor) who is bound to a specific kind of behavior towards the same plaintiff; thus the actio can be brought forth only against such person

the task of the judge is to ascertain the power of the plaintiff on the thing that is the object of the trial

the task of the judge is to ascertain whether the defendant is truly bound to such behavior.

Stages of Procedure

The procedure was constituted by three main stages: summons, trial and execution.

• Summons Oral summons (in ius vocatio) were requests with stated reasons that the defendants should go to court with the plaintiff. Proceedings were not possible without private arbitration, because civil litigation was regarded as essentially private arbitration. The defendant was expected to comply or to find a guarantor (videx) that could guarantee that he would appear in court when required; otherwise the defendant would been taken to court by force.
• Trial Preliminary hearing - a magistrate had a first hearing in order to settle the issues between the parties and to appoint a judge. Appointment of judges - there were two types of judges, iudex or arbiter. The arbiter heard cases involving a considerable use of discretion, for instance the division of common property. Full trial - the parties had to be present, otherwise they could appoint a representative (procurator) to take their place. The trial proceeded by means of alternate speeches from the advocates. The judge was often assisted by a body of advisers; his sententia was delivered orally.

Declarative Legis Actiones

Legis actio sacramenti was divided in:

in rem it was used in defense of rights in rem; it was an assertion of ownership in a thing

in personam it was used for claiming payment of debts; it laid for the enforcement on an obligation owed to the plaintiff by a particular person

From Gaius' Institutes we have a detailed description of the procedure of legis actio sacramenti in rem, which was divided into two phases:

in iure a) both parties should come before the magistrate taking the thing with themselves

26b) festuca : both parties should touch the thing with a stake and at the same time vindicatio (plaintiff) and contravindicatio (defendant): each party should affirm that the thing was his c) each party should defy the other party to make the sacramentum, which was, according to Gaius' description, a sort of bet to pay 50 or 500 axes (depending on the value of the trial) if the party should lose the trial d) the magistrate assigned the temporary possession of the thing to the party who offered the most reliable guarantors, who promised that, in case the trial was lost, the thing would have been handled over to the winning party together with the fruits that the thing would have produced during the trial. The guarantors were called praedes litis et vindiciarum (guarantors of the thing object of the trial and of the fruits).

apud iudicem -> (before the judge), consisted in a discussion before the judge about who was the true owner of the thing, the burden of the proof was on both parties, due to the fact that both parties had affirmed, in iure, that they were the real owners.

The loser had to pay the sum of money to the public exchequer. In legis actiones sacramenti in personam, the defendant could deny the claim of the plaintiff, instead in this case, the procedure would have included the sacramentum and the phase apud iudicem.

The defendant could also:

• neither admit nor deny such claim, in which case he would have been legally considered as indefensus and should have been addictus (assigned) to the plaintiff
• admit his debt in which case he would have been considered as confessus in iure and the plaintiff could have sued him with the legis actio per manus iniectionem

Legis actio per condictionem was used for credits of a certain sum of money originally, but then it was extended to credits regarding specific things different from money.

The phase in iure included different steps:

• the plaintiff stated the amount or the object of his credit, without mentioning its legal source
• the defendant could: neither admit nor deny such claim, in which case he would have been legally considered as indefensus and addictus to the plaintiff admit his debt, in which case he would have been considered as confessus in iure and the plaintiff could have sued him with the legis actio per manus iniectionem deny to be a debtor, in which case the magistrate would have ordered him to come back after thirty days for the appointment of the judge who would have decided the trial

Legis actio per iudicis arbitrive postulationem could be used only for debts deriving from stipulatio and for the division of an inheritance. The procedure implied that the parties uttered specific words, mentioning the source of their right and asking for the appointment of a iudex or an arbiter.

• Execution

27The method of execution depended on whether the action had been in rem or in personam. If it has been in rem, the party who had been granted temporary possession of the disputed property won the case. If it had been in personam there were two different executive legis actiones.

Executive Legis Actiones

Legis actio per manus iniectionem could be used in three cases:

• manus iniectio iudicati -> in case the defendant was condemned for being debtor of a sum of money. The creditor could sue with the manus iniectio: the debtor and the confessus. This was the enforcement action used when there was already a judicial decision (iudicatum) confirming that the defendant owed a sum of money or other obligation.
• manus iniectio pro iudicatio -> in cases where the juridical situation was clear enough to be considered as similar to a situation ascertained in a previous trial. This applied in cases where there was no formal judgment yet, but the situation was treated as if there had been one.
• manus iniectio pura -> in further cases where the claim of the plaintiff was founded in itself. This was the "pure" or unqualified form of manus iniectio. It applied in cases where a creditor could directly enforce their claim without any precondition of judicial intervention or prior acknowledgment of debt.

The procedure included some steps:

a) both parties should come before the magistrate; b) the plaintiff addressing the defendant said the amount or the object of his credit and the source of it c) the plaintiff declared his intention to 'manum inicere' (grab by hand) the debtor

The debtor could:

• appoint a vindex, who could save him from the manus iniectio
• deny the existence of the debt without the intervention of any vindex (only in manus iniectio pura)
• be addictus to the creditor, who could keep him in chains in his private prison for sixty days; during such period, the creditor should take the debtor to the city market for three market days running, proclaiming aloud the amount of the debt so that somebody could ransom the debtor.

If the debtor was not ransomed, he could be sold as a slave beyond the borders of Rome, or killed.

Legis actio per pignoris capionem it could be used for religious or military debts. The procedure included the utterance of specific words while at the same time the plaintiff took possession of things belonging to the debtor, who had the right too ransom them.

Procedure per Formulas

The creation of the procedure per formulas is strongly connected to the growth of business and trade between Roman and foreigners (peregrini). Legal issues could arise in reference

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