Front Page Titles (by Subject) ADDENDUM FORMAL, ABSTRACT, AND SIMULATIVE DISPOSITIONS. - Institutes of Roman Law
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ADDENDUM FORMAL, ABSTRACT, AND SIMULATIVE DISPOSITIONS. - Gaius, Institutes of Roman Law [160 AD]
Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904).
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The following observations borrowed from Thering are supplementary to the statements on the nature of formal contracts.
The contracts which in this treatise have been designated as formal are sometimes from a different point of view called abstract, and an examination of the meaning of this term may throw light on the function for which Formal contracts were invented by jurisprudence and which this term expresses. The explanation of the term turns on two conceptions: the Cause of an obligation (causa obligationis) and the Form of a Disposition: the cause alone needs elucidation.
A unilateral contract, consisting merely of a promise by one party and an acceptance by another, is the result of a decomposition of an actual transaction of commerce and life: actual transactions are always (to set aside for the present the case of Donation) bilateral. The unilateral agreement, conferring a benefit on A and imposing a burden on B, is always accompanied by another unilateral disposition burdensome to A and beneficial to B. The two unilateral dispositions are reciprocally cause and effect: when one is regarded as the causal factor, the other must be regarded (if we may coin a term) as the sequent or dependent factor of the composite or bilateral transaction.
Thus Mutuum, if we take one factor, is the promise to pay a sum which the promisor has received from the promisee: if we take the other factor, it is the alienation of property to a person who promises to reconvey its equivalent to the alienor. Depositum and Commodatum, if we take one factor, are promises to restore Detention which has been received from the promisee: if we take the other factor, they are a delivery by a depositor or lender of Detention which the depositary or borrower promises to redeliver. In Pignus there is a similar delivery and promise to redeliver Possession. Societas is a promise by a partner to contribute towards the attainment of a common end towards which the other partner promises a like contribution. In Mandate, there is, on the one side, a promise to perform something at the charge and expense of a principal: on the other, a grant of authority to deal with the property of the grantor to a person who promises obedience to the instructions and devotion tothe interests of his principal. Here the italicized words show the causal factors which the various unilateral dispositions require for their support: and similarly all other unilateral pacts might be shown to be dependent factors of compound bilateral transactions.
Each correlated unilateral disposition is both cause and effect. Each is a lever by which the will of one of the contractors is moved. Each is the efficient or motor cause of the other: and (as wills are only moved by motives or ends) each is the final cause of the other.
Although they are thus reciprocally dependent, yet generally in practice one habitually precedes, and thus appears to be the causal factor; while the one which habitually follows appears to be the sequent or dependent factor. This is always the case in Real and Innominate contracts, where one disposition has always passed beyond the limits of mere agreement into an alienation of property (mutuum, the innominate contracts do ut des, do ut facias): alienation of possession (pignus): alienation of detention (depositum, commodatum): or performance of service (the innominate contracts facio ut des, facio ut facias).
The Form of a disposition is what we have elsewhere called its Declaration. All dispositions have two elements or aspects, one external or corporal, the other internal or mental. Internally they are the Intention of a disposer or disposers; externally they are the expression or manifestation of this intention.
Formal contract separates the sequent from the causal factor of a bilateral agreement, clothes the intention in a strongly marked, sometimes strangely charactered, external expression, manifestation, or form, in exact conformity to the prescription of archaic law or primeval custom, and thus constitutes a unilateral contract valid by form, Formless contract is bound by no requirement of Form and has no validity in isolation from its cause. Formal contracts from the separation or abstraction of the sequent from the causal factor, are appropriately called abstract; while for the opposite reason formless contracts may be denominated concrete.
Abstract contracts sometimes contained in their formalities a shadowy recognition of their departure from the concrete realities of life—a confession of the necessity of a supporting Cause in actual commerce; but sometimes contained no such avowal. Thus Expensilatio contained the phantom of a money loan, the analogon of the ‘Value received’ clause in a modern bill of exchange. But this recognition was not universal; for Stipulatio, whatever may have been its original form (if derived from Stips, the word suggests prepayment by the promisee: if connected with Stipes, it merely signifies a binding formula), in the shape with which we are acquainted, does not suggest, as a motive or cause of the advantage conferred on the promisee, any compensating burden that he has previously borne.
The function of abstract contracts, the purpose for which they were invented, is obviously the facilitation of the Proof of rights and duties by means of the simplification of their Title. The more comprehensive the conditions of the Title to which a right is annexed, the more complicated and troublesome will be its Proof. The causal factor of Formless contracts yields to a fraudulent debtor at least as many positions where he can intrench himself as the sequent factor. The necessity imposed on the plaintiff in an action on a Formless contract of proving the existence of an adequate cause doubles his burden of proof: Abstract contracts reduce this burden to a fraction.
From the statement, 3 § 92, comm., that a certain evidence of the contract is an integral part of Formal but not of Formless contracts, that Formal contracts, in other words, take up into their essence a certain preappointed evidence, while Formless contracts are complete independently of this, it might be inferred that the elements of the Formal contracts were more complex than those of the Formless: but this would be an erroneous conclusion. The admission of evidentiary matter into the essence of the Formal or Abstract contract is more than counterbalanced by the exclusion of the causal factor. The evidentiary matter is something visible and audible and easy of proof and adjudication; prescribed, indeed, for the very reason that it is so easy of proof and adjudication: whereas the causal factor, involving a question of ulterior as well as of immediate intention, may furnish scope for endless subterfuge and controversy.
The validity of Formal contracts irrespective of the causal factor was to a certain extent infringed in later jurisprudence by the admission of the Exceptio doli, more particularly in its form of Exceptio non numeratae pecuniae. Thus for the space of two years after a cautio for a loan by stipulation or otherwise had been given, the creditor who sought to enforce the contract was under the necessity of proving the existence of the causa (numeratio pecuniae): to this extent, then, Stipulatio was reduced to the disadvantageous position of a Formless contract, 3 §§ 97-109, comm.
Formal dispositions were not confined to the sphere of contract: in the sphere of alienations Traditio is Formless, while Mancipatio and In jure cessio are Formal. Formal alienations present the same contrast that we noticed between Formal contracts. Mancipatio by its simulation of a purchase and the payment of purchase money makes the same recognition of a causal factor that Nexum and Expensilatio made by the payment, or fiction of payment of, a loan; while in Jure cessio (if we can speak with confidence of a process about which we know so little) resembled Stipulatio in containing no such recognition.
Ihering, who has handled this topic, § 55, applies the term abstract to Formal alienations. When, however, we compare Formal and Formless alienations we find the terms Abstract and Concrete not so applicable to alienations as they were to contracts, and for this reason: in Formless alienation there is as complete an abstraction or severance of the sequent from the causal factor as there is in Formal; and Tradition is as unilateral a transaction as Mancipation or Surrender before a magistrate.
This assertion may seem inconsistent with the doctrine (2 § 65, comm.) that, to constitute a valid alienation, Tradition must be preceded by some justa causa, Donatio, Contractus, or Solutio. The preceding disposition, however, is not required in order to form the causal factor of a bilateral disposition, but in order to furnish evidence of the Intention required for a unilateral disposition: to prove the existence of animus transferendi dominii, without which Tradition would be a Form without a substance, would want the internal element it requires in order to amount to a Disposition. Once let the sequent factor, the intention requisite for a unilateral disposition, be proved, and the justa causa, the donandi, credendi, solvendi animus is immaterial. Thus a misunderstanding between alienor and alienee respecting the nature of the transaction, the one intending a loan the other a donation, or the one intending the discharge of a debt imposed by testament the other the discharge of a debt imposed by stipulation, is immaterial: because the intention of donation and of loan, of paying a legacy and of paying a stipulated debt, alike involve the animus transferendi dominii. Cum in corpus quidem quod traditur consentiamus in causis vero dissentiamus, non animadverto cur inefficax sit traditio, veluti si ego credam me ex testamento tibi obligatum esse, ut fundum tradam, tu existimes ex stipulatu tibi eum deberi. Nam et si pecuniam numeratam tibi tradam donandi gratia, tu eam quasi creditam accipias, constat proprietatem ad te transire nec impedimento esse, quod circa causam dandi atque accipiendi dissenserimus, Julian, Dig. 41, 1, 36. An error in respect of the causa may be sufficient to entitle an alienor to condictio indebiti or condictio sine causa; i. e. to a suit for restitution for want of consideration: but it does not prevent the transfer of ownership in the first instance: and if the property passes onward to a third person the alienor cannot reach it in his hands, but has only a personal action against the original alienee.
In one particular instance, by special statutory enactment, the causa traditionis is material to the efficacy of Tradition. Tradition solvendi animo, when the solutio intended is the performance of a contract of sale, operates no transfer of ownership except in sales expressly on credit until the purchase money is paid or security is given for its payment. This, as we have seen, 2 § 65, comm., was a provision of the Twelve Tables in respect of Mancipation, and in later times extended to Tradition. Surrender before the magistrate was not thus restricted in its operation, but transferred ownership irrespectively of the payment of purchase money. Ihering also holds that in Mancipation the requirement of the Twelve Tables was deemed to be satisfied by the simulation of payment (isque mihi emptus est hoc aere aeneaque libra); and he suggests that the existence of the requirement was the very reason why the simulation of payment was introduced into this solemnity.
In this single point, then, Mancipation (if Ihering’s view on the subject is accepted) and Surrender before the magistrate were more completely isolated from their causa than Tradition: but with this exception, Formal and Formless alienations were equally abstract. Both operated a transfer of ownership in spite of any flaw in the causa. If such a flaw existed in either a Formal or a Formless alienation, it only gave the alienor a personal action (condictio) against the alienee for restitution. He could not recover the property if it had passed out of the hands of the first alienee into those of a second.
If we inquire why Formless alienation was allowed to have validity irrespectively of the causal factor, we shall find the reason to be, that Tradition or parting with possession, though a Formless proceeding, is an act of so serious a character as effectually to preclude all idea of indecision—to prove that the parties had reached the stage of definitive resolution. Accordingly the intention of transferring ownership when manifested by Tradition seems to deserve all the efficacy that could be imparted by the observance of the most solemn Forms.
As in the later jurisprudence Stipulatio was robbed of part of its efficacy by the Exceptio pecuniae non numeratae, so, though at an earlier period, and in a different way, Alienations and other transactions, whether Formal or Formless, could be prevented from operating by the in integrum Restitutio, and by the actio quod metus causa, impersonal remedies (in rem) which reached the person benefited by property to whatever hands it might have arrived by the effect of subsequent alienations.
If, then, Formal alienations were not simplifications of title in virtue of any greater abstractness than was possessed by Formless alienation, for what other advantage were they introduced into commerce? by what other attribute were they a facilitation of Proof? They facilitated proof (1) of the specific intention of a disposer against an allegation of a different intention, and (2) of the existence of intention against the denial of all intention.
(1) Delivery of a thing might be made with the design of merely transferring Detention. Such was its effect in Depositum, Commodatum, Mandatum, Locatio. Or, secondly, it might be made with the purpose of transferring something more than Detention, namely Possession. Such was its effect in Pignus and Precarium. Or, thirdly, it might be made with the intent of transferring Ownership, as in Donatio, Mutuum, Solutio. Which of these intentions prompted a given Delivery might be extremely difficult to prove. The difficulty vanishes in Mancipation and Surrender before a Magistrate. Their forms comprehend a most emphatic and trenchant expression of intention. ‘I assert that this slave is my own’ (hunc ego hominem meum esse aio) is the exclamation of the alienee, confirmed by the assent of the alienor, in both modes of Formal alienation.
(2) Formless dispositions, whether alienations or contracts, may leave a doubt not only which of several intentions governed a procedure, but whether any intention at all had been matured in the minds of the negotiators. Had the parties passed the stage of mere contemplation, inclination, preliminary discussion, were they still vacillating, now yielding to an attractive prospect, now receding from half-made concessions? Or had cupidity and timidity, desire and hesitation, given place to final decision and deliberate resolve? It is obvious that the formalities of the solemn modes of contract were invented for the purpose of excluding all doubt from the answers to these questions.
Beginning these remarks we adjourned the consideration of Donation, which may now be noticed. Unilateral dispositions, we have seen, do not exist in the actual world unaccompanied. Each implies another on which it leans. Intention to incur a loss has its final and efficient cause in intention to procure a gain. If this was universally true we might say that all dispositions were in respect of motive bilateral: i. e. that in all a pecuniary loss incurred at one stage of the transaction is balanced by a pecuniary gain accomplished at another. This holds of all mercantile transactions which are the bulk of those that occupy the attention of jurisprudence. The market, however, is not the whole of the world, nor are mercenary acts the whole of life; and there is such a thing as a disinterested disposition, a disposition wherein a man incurs a loss to which the causa or motor factor is the intention not of counterbalancing gain in another part of the transaction, but of pure and simple and unrequited liberality.
Donation may be found in the sphere either of Ownership or of Obligation; it may be accomplished either by alienation or by promise: the intention of liberality may be consummated either by Tradition or by Stipulation. Donation, that is to say, is one of the causae obligationis as well as a justa causa traditionis: and it was in contemplation of a contract animated by such a cause that we abstained, when beginning this note, from saying unreservedly that all actual agreements were in respect of the motives giving rise to them bilateral.
I will seize the present opportunity of supplying an omission in the commentary and noticing another feature common to many Formal dispositions.
The formal dispositions of Roman jurisprudence were frequently simulative. When a new juristic purpose was to be accomplished, the method of jurisprudence was, instead of creating for it by an effort of imagination a new corporeal form, to lay hold of some existing disposition, and wrenching it more or less completely from its original basis and original uses, to employ its more or less twisted and distorted form as a vehicle or incorporation of the new intention. The new intention is the reality: the original intention is divorced from the form once its own, and now is merely simulated. Thus the festuca wielded in Sacramentum perhaps represents the weapon intended to be used in a duel, the older mode of ascertaining rights. Surrender before the magistrate (in jure cessio) is intended to effect a transfer of ownership from person to person: in form it is a judgment respecting an already existing ownership. Transcripticia nomina were intended to operate novations, to transform equitable into legal obligation: in form they were loans of money. Mancipation, a solemn form of conveying dominion, simulated a sale and the accompaniment of primeval sales, the weighing of the uncoined masses of bronze that served as purchase money. The form then, instead of being the natural execution and expression of an intention, has but a remote correspondence to the end which it embodies, and sometimes may be called symbolic: e. g. the production of the scales and bars of bronze and pantomime of weighing in Mancipation was the natural mode of executing an archaic sale, but is merely a symbolic or hieroglyphic expression of the transfer of ownership. Sometimes a mimetic disposition became itself the object of subsequent mimicry, as is seen in the mode of discharging obligations, called acceptilatio Aquiliana.
The Simulative character was not a universal feature even of the older Formal dispositions: for instance, Stipulation seems to have had nothing mimetic in its form: while later jurisprudence, when it had to invent a form, never adopted the symbolic style. Rigorous forms were prescribed as a condition of the validity of various dispositions: e. g. the presence of a certain number of witnesses for the execution of a Will: memorandum in the judicial records (actis, gestis insinuare) for donations of more than 500 solidi or for effecting emancipation by entry in such records (emancipatio Justinianea): none of which were simulations of any more primitive procedure.
The degree of integrity or mutilation in which the primeval disposition persisted in the modern institution varied in different instances. Sometimes the old proceeding imposed all its rules on the new institution: more commonly many of its aspects were effaced and only isolated incidents continued in force. The procedure which involved Coemptio, 1 § 113, was applied by the ingenuity of later jurists to accomplish three purposes never dreamed of by those who presided over its introduction: the extinction of the sacred rites by which the estate of an heiress was burdened; the change of guardian by a woman at the period when all women were under wardship; and the acquisition of testamentary capacity by a woman at a time when widowhood was the only title by which it could be acquired. It was a complicated process and consisted of three factors, each of which was an archaic institution: (1) a Hand-marriage (in manum conventio) accompanied with a fiducia for remancipation; (2) a remancipation accompanied with a fiducia for manumission; (3) a manumission and consequent wardship. Of these factors the Hand-marriage was a pure unreality: it was divested of reality by the accompanying fiducia; yet one of its incidents continued in force, the transfer of the obligation to the sacred rites from the heiress to the coemptionator. The second act was so far an unreality that it was no longer the sale of a wife by her savage lord in exchange for some more coveted commodity: but it was real so far as it subjected the remancipated woman to capitis minutio. The manumission was unreal so far as it implied a vindication into freedom or a liberalis causa and an escape from the hardships of bondage: but it was real so far as it had the effect of making the manumitted ex-bondwoman the ward of her manumitter.
Emancipation, 1 § 132, was a process which usually consisted of four mancipations and three manumissions. The first three mancipations were each accompanied by a fiducia of the alienee: the first two by a fiducia binding the alienee to manumit the son, the third by a fiducia binding the alienee to remancipate the son to the father. By the final manumission the parens manumissor became the patron of his son. Here we have another ceremony which employed a primitive disposition divested of its natural motive. The independence of the son whose father had three times sold or leased his patria potestas over him to a stranger was originally enacted by the Twelve Tables as a punishment for an odious and unnatural exercise of parental rights. In later times the mancipation of the son for the sake of its legal consequences was an act of self-abnegation on the part of the father; a means of promoting the son to an independent position, the status of head of a household.
The positive and arbitrary character of simulative dispositions displays itself in the fact that the laws of the original dispositions which they welded into their substance were neither consistently regarded nor consistently disregarded. (A) Sometimes they were regarded in spite of the inconvenience they occasioned: (B) sometimes convenience prevailed: the new institute acquired an independent position; and logic and archaeology were set at defiance.
(A) The form of surrender before the magistrate could not be employed for the acquisition of property by the agency of an inferior (son or slave), because such a person could not be a plaintiff in a genuine vindicatio. Hence the inferior could be an instrument for acquiring a rustic servitude, because he could be a party to a mancipation, but not for acquiring an urban servitude, because this could only be conveyed by surrender before the magistrate, 2 § 29.
In Mancipatio the payment by bars of bronze became as fictitious as the adprehensio or taking possession; and yet, according to Ihering, it sufficed to satisfy the requirement of the Twelve Tables whereby in Sale and delivery the passing of property was suspended until payment of the purchase money. (See 2 §§ 15-27, comm., and cf. Sohm, p. 60, &c., Muirhead, p. 134, &c.)
Manumission of the son by the emancipating father from the shadowy state of mancipium invested the latter, if he survived his son, with the serious pecuniary rights of patronus against his testate or intestate succession.
Women were incapable of Adrogation, because this solemnity involved a formal assembly of the Comitia Curiata; and in such an assembly women were not allowed to be present.
In the mancipatory will the Familiae emptor was originally in the place of the heir; and therefore, to exclude partial testimony (domesticum testimonium), persons united to Familiae emptor by the bond of patria potestas were disqualified for the rôle of witness. The disqualification was continued, in spite of the inconvenience it would occasion, when the familiae emptor was a mere form; and, what is more extraordinary, legatees and persons united to the real heir were admissible as witnesses, although the policy of the law was thereby entirely put into confusion (totum jus tale conturbatum fuerat, Inst. 2, 10, 10). The requirement of testamenti factio passiva at the time of the making of a will, as well as at the time of the testator’s death and the time of acquisition by the heir, was, according to Savigny, § 393, only an irrational consequence of the simulation of Mancipium in a will.
(B) In the following instances, on the contrary, the laws of the simulated institution were disregarded or transformed. Hereditatis petitio being a form of Vindicatio we might have expected that any kind of inheritance when once vested would be transferable by surrender before the magistrate or fictitious vindication, just as any inheritance could be claimed by genuine hereditatis petitio. But we find that only the intestate succession of a collateral (legitima hereditas) could be thus conveyed, if, made after aditio, it transferred only the corporeal property of the inheritance, not the inheritance itself, 2 § 35. Cf. Sohm, p. 533, n. 3.
In Mancipatio, although the fictitious payment sufficed for the transfer of dominion, yet actual payment or credit was required for the purpose of making the alienor subject to auctoritas, that is, to liability to repay twice the purchase money in the event of eviction, Paulus, 2, 17, 13. Cf. Muirhead, Roman Law, § 30.
Again, the Census, like a year of jubilee, appears to have liberated from genuine bondage; but not to have broken the fictitious bondage of a son who was in the course of emancipation, 1 § 140.
Coemption, we are told, transferred to the husband the universal estate of the wife, 2 § 98. We may suppose that it had not a similar effect on the property of a woman who merely made a coemption for the purpose of changing her guardian or acquiring testamentary capacity, though it may perhaps have been that the transfer took place but that the coemptionator was under a fiducia to retransfer it.
The genuine sale of a wife was probably forbidden at an early period under the severest religious sanctions: this did not prevent the simulated sale (remancipatio) of a woman by her coemptionator, i. e. the simulating disposition when once established was free from the supervening rules of the simulated disposition.
A Testament was originally a Mancipation; but the familia or juris universitas, the object of testament, is not found in the catalogue of mancipable things (res mancipi): a testament was revocable, a mancipation irrevocable: the mancipation itself could not have its operation suspended or made contingent on a condition, though it could be made subject to nuncupatory and fiduciary claims; a testament became by means of the nuncupatory part of the mancipation a disposition de futuro and might be conditional: a mancipation only conveyed real rights; nexum, which imposed obligation, though cognate, was a distinct institution: testament invested the heir with the entire property of the deceased, including his obligations: mancipation only affected the alienor and alienee; testament conferred rights on heirs and legatees, i. e. strangers who had in no way cooperated in the execution of the testament. The sacrifice of reality to fiction by the slavish adherence to the rules of domesticum testimonium makes it the more remarkable that the testament should have burst asunder so many other restrictions of mancipation. Ihering, Geist des Roemischen Rechts, § 58.
§ 1. —|—NA quot genera actionum sint, uerius uidetur duo esse, in rem et in personam; nam qui iiii esse dixerunt ex sponsionum generibus, non animaduerterunt quasdam species actionum inter genera se rettulisse.
Inst. 4, 6, 1.
§ 2. In personam actio est, qua agimus cum aliquo, qui nobis uel ex contractu uel ex delicto obligatus est, id est cum intendimus dare facere praestare oportere.
Inst. l. c.
§ 3. In rem actio est, cum aut corporalem rem intendimus nostram esse, aut ius aliquod nobis conpetere, ueluti utendi aut utendi fruendi, eundi agendi aquamue ducendi uel altius tollendi prospiciendiue; 〈aut cum〉 actio ex diuerso aduersario est negatiua.
Inst. l. c.
§ 4. Sic itaque discretis actionibus certum est non posse nos rem nostram ab alio ita petere si paret evm dare oportere. nec enim quod nostrum est nobis dari potest, cum scilicet id dari nobis intellegatur, quod 〈ita datur, ut〉 nostrum fiat; nec res quae 〈nostra iam est〉nostra amplius fieri potest. plane odio furum, quo magis pluribus actionibus teneantur, receptum est, ut extra poenam dupli aut quadrupli rei recipiendae nomine fures etiam hac actione teneantur si paret eos dare oportere, quamuis sit etiam aduersus eos haec actio, qua rem nostram esse petimus.
Inst. 4, 6, 14.
§ 5. Appellantur autem in rem quidem actiones uindicationes, in personam uero actiones, quibus dari fierive oportere intendimus, condictiones.
Inst. 4, 6, 15.
§ 6. Agimus autem interdum, ut rem tantum consequamur, interdum ut poenam tantum, alias ut rem et poenam.
Inst. 4, 6, 16.
§ 7. Rem tantum persequimur uelut actionibus, 〈quibus〉 ex contractu agimus.
Inst. 4, 6, 17.
§ 8. Poenam tantum persequimur uelut actione furti et iniuriarum et secundum quorundam opinionem actione ui bonorum raptorum; nam ipsius rei et uindicatio et condictio nobis conpetit.
Inst. 4, 6, 18.
§ 9. Rem uero et poenam persequimur uelut ex his causis, ex quibus aduersus infitiantem in duplum agimus; quod accidit per actionem iudicati, depensi, damni iniuriae legis Aquiliae, aut legatorum nomine quae per damnationem certa relicta sunt.
Inst. 4, 6, 19.
§ 1. We have now to treat of Actions, which according to the better view fall into two classes, being either Real or Personal: for those who count four classes, including the forms of sponsio, commit the error of co-ordinating sub-classes with classes.
§ 2. A Personal action is an action which seeks to enforce an obligation imposed on the defendant by his contract or delict, that is to say, is an action by which one claims in the intentio of the formula that he is bound to convey some property to one, or to perform for one some service, or to make some other kind of performance.
§ 3. A Real action is an action by which one claims as one’s own in the intentio some corporeal thing or some particular right in the thing, as a right of use or usufruct of a thing belonging to a neighbour, or a right of horseway or carriage-way through his land, or of fetching water from a source in his land, or of raising one’s house above a certain height, or of having the prospect from one’s windows unobstructed; or when the opposite party (that is the owner) brings the negative action asserting that there is no such right in the thing.
§ 4. Real and Personal actions being thus distinguished, it is clear that I cannot demand my own property from another in the following form: ‘If it be proved that the defendant is bound to convey such property to me.’ For what is already my own cannot be conveyed to me, since conveyance to me makes a thing mine, and what is already mine cannot be made more mine than it is. Yet, to show the law’s detestation of thieves, in order to make them liable to a greater number of actions, it is received doctrine that besides the penalty of twice the value of the thing stolen awarded against the thief not caught in the act, and the penalty of four times the value against the thief caught in the act, damages for the thing itself may be recovered by a personal action in which the contention is thus worded: ‘If it be proved that the defendant ought to convey the thing in question,’ although they are also liable to be sued by an action with the intentio thus formulated: ‘If it be proved that the plaintiff is owner of the thing in question.’
§ 5. A Real action is called vindicatio; a Personal action, whereby we contend that some property should be conveyed to us or some service performed for us, is called condictio.
§ 6. We sue sometimes only to obtain property, sometimes only for a penalty, sometimes both for property and for a penalty.
§ 7. We sue, for instance, only for property in actions founded on contract.
§ 8. We sue, for instance, only for a penalty in the action of Theft and of Outrage, and, according to some, of Rapine; for we may obtain restitution on account of the thing itself either by vindicatio or condictio.
§ 9. We sue, for instance, both for property and for a penalty in those actions where the defendant who denies his liability is condemned to pay double, as in the actions to recover a judgment debt, to recover money paid by a sponsor for his principal, to recover damages for injury to property under the lex Aquilia, and to recover legacies of a definite amount bequeathed in the form of legacy per damnationem.
§ 1. From Substantive law Gaius now passes to the law of Procedure, confining himself partly with its Material as opposed to its Formal aspect: dealing with actions, that is to say, not so far as they are merely the method of realizing rights, but also as being the rights themselves which entitle a person who is wronged to obtain redress by legal process. Dig. 44, 7, 51, actio est jus, quod sibi debeatur, judicio persequendi.
If we inquire which code is the earlier in its development, the Substantive code or the code of Procedure, the answer is that they are essentially contemporaneous: a Substantive code can have no actual existence unless there is some method of giving it force; and again, a code of procedure can have no meaning unless there is a substantive law to be administered. But after recognizing that the two codes are correlative and necessarily coexistent, we find that historically the code of Procedure is prior in the chronological order: it attains to a high grade of development, while the Substantive code, which started into birth at the same time, remains in a rudimentary, undeveloped condition. Courts of law once established soon evolve strict rules to govern their proceedings, while society is in too rudimentary a condition to enable it to define the substantive law brought into existence by the legal remedies which are provided.
The following contrast of ancient and modern jurisprudence here deserves a notice. No primary rights can be conceived without sanctioning rights, or rights which arise when the primary rights are violated: and again, no sanctioning rights can be conceived without Actions or modes of evoking the interposition of the sovereign power. And, as Rights imply Actions, so reciprocally Actions imply Rights. But though, as corresponding or correlated terms, Right and Action have a necessary connexion, and the existence of one may be inferred from the existence of the other; systems of jurisprudence may differ in different stages of development as to which of these terms, the Right or the Action, they deem the more evident; which they regard as the datum and which the matter to be proved; which the logical premiss and which the conclusion.
In primitive jurisprudence, when there is little direct intervention on the part of the state with private law, the Remedy is regarded as the certainty; the Right, primary or sanctioning, as the matter of deduction. The forms of Action, emphatically so in Statute-process (legis actio) and to a great extent even in the Formulary system as crystallized by statute or laid down in the edict, were capable of enumeration and incapable or difficult of multiplication; and from the application by the courts of these forms the citizen might deduce the list of his legal rights and duties. The logic of ancient law may be expressed in the maxim: Where there is a Remedy there is a Right: There is no Right unless there is a Remedy.
The modern jurist assumes the other, the more ideal of the two correlated terms, to be the more evident, and acts upon the converse maxim: Where there is a Right there is a Remedy; or, Given the Right, the Remedy follows. The action now is the dependent term: its forms are unimportant and indefinitely variable; they are no longer crystallizations. If a Right is established and no appropriate form of action seems to exist, a new one is forthwith invented, and its fitness to enforce the established right is sufficient to procure its recognition by the judicature. Such at least, if not opposite goals at which ancient and modern jurisprudence have arrived, appear to be opposite directions in which they diverge.
Sponsio or wager between the parties to a litigation was an indirect mode of submitting questions to judicial decision, which seems to have been in use before the introduction of the formulary system. We are left to conjecture how its classification enabled any jurist to count four classes of action. Its principal division seems to be into the sponsio where the pecuniary risk was serious and the penal sum important (sponsio poenalis), and the sponsio used for the purpose of framing an issue to be tried where the penal sum was nominal and not actually exacted (sponsio praejudicialis). This division of actions into four instead of two classes may possibly have arisen from the difficulty of finding a place in the twofold division for interdicta and praejudicia. The four classes of actions which Gaius refers to would accordingly be, actio in rem, actio in personam, actio per sponsionem praejudicialem, actio per sponsionem poenalem; but as the last form of action is regarded as being in personam, and the actio per sponsionem praejudicialem as in rem, Gaius prefers the twofold division. (Cf. Keller, Civil Process, § 87, n. 82.) According to Huschke the four classes intended are (1) personalis actio, (2) petitoria formula, (3) in rem actio, per sponsionem cujus summa per formulam petitur, (4) per sponsionem cujus summa sacramenti actione petitur. (See Muirhead’s Gaius, h. l.) In either case the classification would involve a co-ordination of sub-genera and genera, or subdivisions and divisions.
A Real action, § 3, is one which asserts a jus in rem, a Personal action, § 2, one which asserts a jus in personam. A jus in rem, we may remember, is a right to certain forbearances, or freedom from molestation, corresponding to a duty imposed on all the world: a jus in personam is a right to certain performances or forbearances corresponding to a duty imposed on a determinate person. Jura in rem, which are rights of property, are Ownership, and jura in re aliena, such as Servitude, that is, some fraction of ownership, Emphyteusis, and Pignus. Jura in personam are Obligations founded on either contract or delict, or some quasi-contract or quasi-delict.
A Real action, accordingly, asserts either the ownership (hunc hominem meum esse aio) of the plaintiff or one of the jura in re aliena above mentioned; a Personal action asserts an obligation of the defendant towards the plaintiff.
In Roman law, it should be remembered, a claim of property in a movable is a Real action just as much as a claim of property in an immovable. Thus the distinction between Real and Personal actions which we meet with in the history of English law diverged widely from its Roman prototype.
A Real action or actio in rem when carried on in the form of legis actio sacramento, § 16, contained an assertion by each party of his claim to the thing not as against the other party to the suit, but absolutely.—Hunc ego fundum ex jure Quiritium meum esse aio, &c., and similarly in the formulary procedure a real action names no party but the Plaintiff in the intentio, the principal part of the formula or written instructions of the praetor to the judex, in which the plaintiff’s claim is specified; e. g. Si paret hominem quo de agitur ex jure Quiritium Auli Agerii esse; whereas a Personal action names the defendant as well as the plaintiff in the intentio, e. g. Si paret Numerium Negidium Aulo Agerio H. S. decem milia dare oportere.
A vindicatio originally in the form of legis actio sacramento in rem, in which the striking the slave with the vindicta or wand was retained, survived in the in jure cessio used for the purpose of manumission (vindicatio in libertatem), and also in the form of adoption, cf. 1 § 134—is qui adoptat vindicat apud praetorem filium suum esse, et illo contra non vindicante a praetore vindicanti filius addicitur. Trials concerning status were, we know, carried on in the decemviral court by process of legis actio till the time of Augustus. We know that in a question of libertas (liberalis causa), until the time of Justinian, the person whose freedom was in dispute could not be either plaintiff or defendant, his rights were advocated by an Adsertor, Cod. 7, 17, De adsertione tollenda. Under the formulary system questions of status might be tried by a praejudicium, § 44, which was regarded as a kind of actio in rem. We have no record of the precise form of the intentio in this case.
A vindicatio asserting ownership in land contained an intentio in these words: Si paret illum fundum ex jure Quiritium Auli Agerii (Plaintiff) esse. A vindicatio claiming not absolute property, but some fraction of ownership (jus in re aliena), for instance, a rural servitude, contained an intentio to this effect: Si paret Aulo Agerio jus esse per fundum illum ire agere, quanti ea res erit, &c., or, Si paret Aulo Agerio jus esse aedes suas altius tollere invito Numerio Negidio, quanti, &c., § 3. Cf. §§ 92, 93.
A Personal action, as we have seen, named in the intentio the defendant, who was alleged to be under an obligation to the plaintiff. E. g. if the plaintiff alleged that the defendant lay under an obligation to restore to him the thing he had lent him, the action was in this form: Si paret Aulum Agerium Numerio Negidio rem de qua agitur commodasse eamque Aulo Agerio redditam non esse, quanti ea res erit, tantam pecuniam condemna, si non paret, absolve.
The word Dare is used in the Intentio of a Condictio Certi, i. e. an action wherein the plaintiff asserts that the defendant is under an obligation to convey quiritary property in a determinate thing, whether a sum of money or any other object of property, a certain slave, certain corn, certain land. E. g. Si paret Numerium Negidium Aulo Agerio sestertium decem milia—tritici Africi optimi centum modios—dare oportere.
The word Facere never appears to stand alone in an intentio. but in its stead we have Dare facere in the Intentio of actio ex stipulatu, that is, of an action on a stipulation to enforce a claim of an uncertain amount, a claim of any service but the transfer of quiritary property in a certain thing, that is, to enforce any obligation not included under Dare as above defined. E. g. Quidquid paret Numerium Negidium Aulo Agerio dare facere oportere, § 5, comm.
Praestare is a term of wider meaning than the two preceding, and appears specifically to denote reparation for any harm, compensation for any loss, damages for breach of any obligation other than liability—dare—or dare facere. But some writers have tried to attach a more definite meaning to the term. (Cf. Muirhead’s Gaius, 4 § 2.) We find it is used in connexion with some arbitria and actions ex fide bona, where the defendant’s liability was to be determined at the discretion of the arbiter or judex. In all civil actions founded on Delict the intentio frequently contains the terms: damnum decidere oportere, § 37, for which some writers think praestare to have been an equivalent.
§ 3. Negativa. An action respecting a servitude was either Confessoria or Negativa. If the plaintiff claimed a servitude over the land or house of the defendant, his action was called Confessoria; if he denied that his own land or house was subject to a servitude, his action was called Negativa (or Negatoria) in rem actio. In Confessoria the intentio was of the form, si paret Aulo Agerio jus esse eo fundo quo de agitur uti frui: in Negatoria of the form, si paret Numerio Negidio jus non esse eo fundo de quo agitur uti frui invito Aulo Agerio. In this action the plaintiff, probably, was not bound to prove a negative, but only the existence of his own ownership; it would then be incumbent on the defendant to prove affirmatively a limitation of this ownership. The actio negatoria is, it must be remembered, maintainable by the owner of property, not only when some one claims a servitude over it, but also in the case of any other interference with his rights, short of actually depriving him of possession. It is, like vindicatio, an actio in rem based on title of ownership, so that in bringing it, it is incumbent on the plaintiff to prove his ownership, which is a proverbially difficult subject of proof.
The coexistence of actio confessoria and actio negatoria with the antithesis of Positive and Negative servitudes is at first sight embarrassing: for we might suppose that an actio Confessoria of a jus altius tollendi was equivalent to an actio Negatoria of a jus altius Non tollendi; and that an actio Confessoria of a jus altius Non tollendi was equivalent to an actio Negatoria of a jus altius tollendi: so that the law would be encumbered by a redundancy of forms.
The following appears to be the explanation and to reconcile statements in our authorities which at first sight are inconsistent. The nature of the Servitude, Positive or Negative, alleged by the plaintiff and, consequentially, the character of the action, Confessoria or Negatoria, which he instituted, depended on the nature of the facts on which he relied as his title and on the nature of the allegations by which the defendant opposed his claim.
The plaintiff asserted a right of raising the height of his house by an actio Confessoria of a jus altius tollendi, consistently with the statement in § 3, if he alleged the Extinction of a former jus altius Non tollendi, i. e. the recovery of his original freedom; for we have mentioned, 2 § 31, comm., that the extinction of an Urban servitude could only be accomplished by the erection of a contrary or antagonistic servitude: whereas he asserted it by an actio Negatoria of a jus Non altius tollendi, consistently with Dig. 8, 5, 4, 7 (competit autem de servitute actio domino aedificii neganti servitutem se vicino debere), if he denied that such a jus Non altius tollendi had ever existed.
Similarly a right of prohibiting a neighbour from raising the height of his house would probably be asserted by actio Confessoria of jus Non altius tollendi if the defendant denied that such a right had ever existed: by actio Negatoria of jus altius tollendi, consistently with Inst. 4, 6, 2 (contra quoque de usufructu et de servitutibus praediorum rusticorum, item praediorum urbanorum invicem quoque proditae sunt actiones, ut quis intendat jus non esse adversario . . . altius tollendi . . . ; istae quoque actiones in rem sunt, sed Negativae. Quod genus actionis in controversiis rerum corporalium proditum non est; nam in his is agit qui non possidet: ei vero qui possidet non est actio prodita, per quam neget rem actoris esse), if the defendant contended that, though it once existed, it had been extinguished by usucapio libertatis.
Whether an action was Confessoria or Negatoria might possibly depend on the form in which the owner asserted the freedom of his property from any claim on the part of another to interfere with it. For instance, in Dig. 8, 5, 4, 7, where Ulpian is apparently speaking of actio Negativa of jus Non altius tollendi, he presently adds: hoc igitur intendo, habere me jus altius tollendi invito eo cum quo ago: terms which seem more appropriate for expressing an actio Confessoria of a jus altius tollendi; and which probably would express such an action, if the plaintiff intended to aver a reacquisition of his original freedom.
In both Confessoria and Negatoria the first proof was, according to the ordinary rule, incumbent on the plaintiff. The plaintiff Negator of jus Non altius tollendi or Assertor of jus altius tollendi had first to adduce proof in support of his contention—which in the former case would be simply to prove the fact of his ownership—before the defendant was called upon to prove his opposite contention: and the plaintiff, as asserting a right of servitude, must begin with adducing proof of its existence before the defendant is called upon to disprove its existence or to prove its extinction. Cf. § 88, comm.
The abolition in England of real actions has destroyed most of the likeness that once existed in the remedies provided by English law for the protection or impeachment of Profits and Easements (more or less identical with the rights which the Romans called Servitudes) and the remedies by which at Roman law Servitudes were protected or impeached. Before the abolition of Real actions each incorporeal hereditament was asserted or contested by some Real action corresponding either to actio Confessoria or to actio Negatoria. After their abolition the only remedy is Trespass or Trespass on the case (or their modern equivalents), personal actions which procure not restitution of a real right, but satisfaction in damages for injury sustained by its contravention, and which will lie as often as the wrong is repeated: or the Chancery or other Division of the High Court will stay the continuance or progress of a wrong by the issue of an Injunction.
As the perfect right of Ownership is supplemented by a less perfect right, the right of Possession, protected to some extent by possessory interdicts instead of by vindicatio, the remedy of Ownership; so the fraction of Ownership or perfect right which forms a Servitude is supplemented by an imperfect right, a right of Quasipossession, also protected by Interdicts, some identical in character with those which protect Possession, some varying with the nature of the Servitude, § 139.
§ 4. Gaius points out that the Roman law of his day was illogical in allowing condictio on account of stolen property, cf. Inst. 4, 6, 14, no transfer of ownership being operated by theft. Roman law contained no disposition similar to that of English law, that property in stolen goods passes by sale in market overt. Even in the hands of a third person, an innocent purchaser, the thing remained the property of the original owner, exempt from the potent chemistry of usucapion. It follows that the action for obtaining restitution logically competent to the owner who still remained owner was vindicatio, and not an action based on an obligation to convey ownership to the plaintiff.
In the condictio ex causa furtiva, instead of the intentio, Si paret dare oportere, § 4, which implies that the plaintiff is not owner, we might have expected him to sue with the intentio, quidquid paret Dare facere oportere, which might be merely a form of claiming damages for the injury, and accordingly would be consistent with his ownership. The explanation why the other formula was allowed seems to be that at the time when this remedy on account of furtum was established condictio could only be brought on account of certa pecunia or certa res. The form of condictio was perhaps adopted in this case, though at the cost of an anomaly, in order to make the action transmissible against the heirs of the delinquent, a delictal action being intransmissible.
§ 5. Condictio is an actio stricti juris, see §§ 18-20, comm. (For the distinction which is sometimes drawn between condictio and other kinds of actiones stricti juris see Sohm, § 80, n. 6.) It therefore excludes, besides all actions in rem, actions bonae fidei (which had an intentio Quidquid dari fieri oportet ex fide bona, § 47), and praetorian actions in personam; moreover actions ex delicto with the exception of condictio furtiva, which, as we have seen, is anomalous, § 4, belong to a different category. In its original and strict form it was always Condictio certi, with an intentio, Si paret dare oportere. It is either brought to recover a certain sum of money, Condictio certae pecuniae, or is brought to recover corn (hence its name), land or a slave or any other certain thing, and then is called Condictio triticaria, e. g. si paret Numerium Negidium Aulo Agerio tritici Africani optimi modios tot dare oportere, quanti ea res est, &c., Lenel, p. 190. Condictio then, strictly speaking, denotes the certainty and individuality of the property claimed apart from the ground on account of which it was claimed. But in later Roman law a condictio incerti, corresponding to an actio ex stipulatu for something unascertained in amount, is spoken of, perhaps with an intentio, quidquid paret dare facere oportere. Cf. Sohm, l. c.; Lenel, § 57.
In condictio certae pecuniae both the intentio (which names certa pecunia) and the condemnatio are certae. In condictio triticaria the intentio (which names some other certa res) is certa; the condemnatio (quanti ea res erit) is incerta. In condictio incerti both intentio and condemnatio are incertae, § 49, comm.
§ 6. Rights may be divided into primary and secondary. Primary rights are antecedent to wrong, such as ownership. Secondary or sanctioning rights imply an antecedent wrong, and their title is a breach of some primary right, as a breach of contract or a delict.
Both these classes of rights and the corresponding duties are creations of the law: for every law is both imperative and coercive; that is, both by its command confers a primary right and imposes a corresponding primary duty, and sanctions its command by conferring a secondary right and imposing a secondary duty, that is, by conferring a remedy and employing coercion in the event of disobedience.
The sanctions of the civil law are either reparative and remedial or punitory and preventive; and in one case the object of the law is the restoration of the plaintiff by restitution or compensation, and then his primary right is the measure of his redress or sanctioning right; in the other case it is the repression of similar wrongs by inflicting a punishment on the defendant which may operate as a terror to himself in future (reformatory) and to other wrongdoers (exemplary); and then the sanctioning right may far exceed his primary right. Even restoration may embrace the mediate as well as the immediate value of the primary right, 3 § 212, comm.
The language of Roman jurisprudence makes no distinction between a primary right and a sanctioning right when the sanction is purely restorative, even though it include indireet or consequential damages, calling both by the name of the Object (Res). The redress directly given by the Roman law under the formulary procedure was always pecuniary damages, and we might have expected Roman jurists above all others to distinguish between the objects of the plaintiff’s primary and secondary right; but the indirect result of a real action might be the recovery of specific restitution, and it was in view of this type of redress that the Roman lawyers were led to speak of the objects of primary and reparative secondary rights as identical.
If we next proceed to inquire what classes of actions are brought for reparation or to recover the object of a primary right (rei persecutio), and what for the recovery of a penalty (poenae persecutio), §§ 6-9, we shall have no difficulty in perceiving that real actions and actions on contract belong to the former class (rei persecutio); and that of actions on delict, some are reparatory, as e. g. condictio furtiva, while others have for their object a penalty (poenae persecutio), such as the actio furti, while in some again both objects are combined e. g. actio vi bonorum raptorum. Inst. 4, 6, 16-19. The effect of real actions and of actions on contract is restoration: they leave the plaintiff no richer and the defendant no poorer in respect of property than he was at first; whereas the purely penal actions leave the plaintiff, in respect of property, richer, and the defendant poorer. But the remaining divisions of actions on delict, those brought to recover indemnification for damage to property, are more ambiguous in character. If we merely regard their effect on the plaintiff they seem to be purely reparative, for they leave the plaintiff no richer; but if we regard their effect on the defendant they seem to be penal, for if the wrong done by the defendant was a destruction of property, compensation to the plaintiff will leave the defendant poorer. Those actions on delict, which may be called vindictive (quae ad ultionem pertinent, quae vindictam continent), as having for their special object the satisfaction of the injured feelings of the plaintiff, such as the actio injuriarum, have the effect of penalising the defendant, and so rather resemble the purely penal actions ex delicto than such as are merely reparatory.
We have seen, 3 § 212, comm., that, even under a contract, damages could include indirect losses or the mediate value of the primary right, and might, according to the limitation made by Justinian, Cod. 7, 47, 1, amount to twice the immediate value of the subject-matter of the obligation, where this can be ascertained: and that in the case of actions, founded on delict, damages, as distinct from penalty, were not restricted to any maximum.
But delictal actions, whether they are regarded as rei persecutio, or as poenae persecutio, or as mixtae, are generally subject to the following rules: they are not passively transmissible, i. e. they are not maintainable against the heir of the defendant, except so far as the inheritance he has succeeded to was enriched by the delict, unless there has been joinder of issue (lis contestata) against the wrongdoer, in which case the delictal obligation is novated, 3 § 180, and becomes passively transmissible; moreover, they are maintainable against each one of several delinquents for the entire damages (in solidum); and they can be brought in the form of noxal actions against the paterfamilias or dominus. See Grueber, Lex Aquilia, p. 275. Moreover, Praetorian penal actions can, generally speaking, only be maintained within a year (annus utilis) from the commission of the delict.
It is to be noticed that in case of the death of the delinquent, the plaintiff had not always an adequate remedy under the Roman law, when the inheritance was not enriched by the delict, e. g. in the case of damage to property under the lex Aquilia; and English common law even went beyond the rule of Roman law in this respect, since its principle was that no action of Tort (a term which does not coincide with but is wider than that of Delict) would lie against the executor or administrator of the wrongdoer. [The maxim, actio personalis moritur cum persona, often used by expositors of English law, must have originated in a misprint of personalis for poenalis.] But now, by 3 and 4 Will. IV, c. 42, an action for injury to property, as opposed to actions for slander and the like (vindictive actions, which die with the person), is maintainable against the executors and administrators of the wrongdoer, provided the wrong was committed within six months before his death and the action is brought within a year after his death, if it was an injury to real property, or within six months after his executors or administrators have taken on themselves administration, if it was an injury to personal property. Thus within the limits of this statute the English plaintiff has an ampler remedy than the Roman. See Pollock’s Law of Torts, Ch. III. § 2.
It should be remembered respecting the extinction of delictal actions (1) that by reason of death, Vindictive suits are incapable of either active or passive transmission (transmission to the heir of the plaintiff or against the heir of the defendant), other delictal actions being capable of active but incapable of passive transmission, § 111, comm.; (2) that by prescription, Praetorian Penal suits are generally limited to a year, while Civil actions are ‘perpetuae,’ §§ 110-113, comm.; (3) that in the case of concurrence, i. e. the merger, absorption, or alternation of several coexisting suits, one penal action may not consume another on account of the same offence. (As to the interpretation of the statement in the Institutes (4, 9, 1) numquam actiones praesertim poenales de eadem re concurrentes alia aliam consumit, see Dr. Moyle’s note, and cf. Windscheid, Pandekten, 2 § 326, n. 8 & 9.) The importance of the distinction between reparatory and purely penal actions has disappeared in modern times in consequence of the desuetude of purely penal actions.
Damages in English law is a general term for the pecuniary sum awarded to the plaintiff in a civil action; i. e. a claim for damages includes not only compensation for loss of property, but also what is recovered in such actions, as those for assault or libel.
§ 7. One action upon contract, namely, the action against a depositary, was brought for double the value of the deposit, i. e. was partly penal, if the deposit was necessitated by fire, shipwreck, tumult, or similar distress.
§ 8. In Justinian’s time it was fully established that the penalty of Rapine was only thrice the value of the thing taken with violence, that is, the quadruple damages were partly penal and partly reparatory; accordingly the actions vi bonorum raptorum and the real or personal action to recover the thing taken or damages could not also be brought, that is they were not concurrent or cumulative, Inst. 4, 6, 19. For a case of quadruple damages, of which ¼ was restorative and ¾ penal, under 9 Anne, c. 14, against Gaming, see Stephen’s Blackstone, Introduction.
§ 9. The actio judicati was brought against a defendant to enforce the condemnation of the judex. If he defended this action he was liable to be condemned to pay twice the amount of the judgment debt, and was required to give security judicatum solvi. This security was the modern representative of the interposition of a Vindex in the old proceeding of manus injectio. In manus injectio pro judicato it seems the Vindex who lost the suit was condemned, as a penalty for his unwarranted interference, to pay a sum equal to the original judgment debt; in other words, to discharge the debtor he had to pay twice the amount of the debt. In manus injectio pura the defendant was so to say his own Vindex, and, if he lost, was condemned in double the debt. See §§ 21-25.
The actio depensi [see above, 3 § 127] was introduced by a lex Publilia of uncertain date, and as it was only given to the sponsor, would become obsolete when the sponsor was superseded by the fidejussor.
Legatum per damnationem no longer existed in the time of Justinian, who confined the action of the legatee against the heres for twice the value of the legacy to the case of bequests to churches and religious institutions. Inst. 3, 27, 7.
§ 10. Quaedam praeterea sunt actiones quae ad legis actionem exprimuntur, quaedam sua ui ac potestate constant. quod ut manifestum fiat, opus est ut prius de legis actionibus loquamur.
§ 11. Actiones quas in usu ueteres habuerunt legis actiones appellabantur uel ideo, quod legibus proditae erant (quippe tunc edicta praetoris, quibus conplures actiones introductae sunt, nondum in usu habebantur), uel ideo, quia ipsarum legum uerbis accommodatae erant et ideo inmutabiles proinde atque leges obseruabantur. unde eum, qui de uitibus succisis ita egisset, ut in actione uites nominaret, responsum est rem perdidisse, cum debuisset arbores nominare eo, quod lex xii tabularum, ex qua de uitibus succisis actio conpeteret, generaliter de arboribus succisis loqueretur.
§ 12. Lege autem agebatur modis quinque: sacramento, per iudicis postulationem, per condictionem, per manus iniectionem, per pignoris capionem.
§ 13. Sacramenti actio generalis erat; de quibus enim rebus ut aliter ageretur lege cautum non erat, de his sacramento agebatur. eaque actio proinde periculosa erat | falsi—, atque hoc tempore periculosa est actio cer|tae creditae pecuniae propter sponsionem qua periclitaturreus, si temere neget, 〈et〉 restipulationem qua periclitatur actor, si non debitum petat; nam qui uictus erat summam sacramenti praestabat poenae nomine, eaque in publicum cedebat praedesque eo nomine praetori dabantur, non ut nunc sponsionis et restipulationis poena lucro cedit aduersario qui uicerit.
§ 14. Poena autem sacramenti aut quingenaria erat aut quinquagenaria. nam de rebus mille aeris plurisue quingentis assibus, de minoris uero quinquaginta assibus sacramento contendebatur; nam ita lege xii tabularum cautum erat. 〈at〉 si de libertate hominis controuersia erat, etiamsi pretiosissimus homo esset, tamen ut l assibus sacramento contenderetur, eadem lege cautum est fauore scilicet libertatis, ne onerarentur adsertores. —
(11 uersus in C legi nequeunt)—|—NA
§ 15. omnes actiones—
(5 uersus in C legi nequeunt)—|—NAcaptus—|NA
(5 uersus in C legi nequeunt)—|—NAad iudicem accipiendum uenirent; postea uero reuersis dabatur. ut autem 〈die〉 xxx iudex daretur, per legem Pinariam factum est; ante eam autem legem statim dabatur iudex. illud ex superioribus intellegimus, si de re minoris quam 〈m〉 aeris agebatur, quinquagenario sacramento, non quingenario eos contendere solitos fuisse. postea tamen quam iudex datus esset, conperendinum diem, ut ad iudicem uenirent, denuntiabant. deinde cum ad iudicem uenerant, antequam apud eum causam perorarent, solebant breuiter ei et quasi per indicem rem exponere; quae dicebatur causae coniectio, quasi causae suae in breue coactio.
§ 16. Si in rem agebatur, mobilia quidem et mouentia, quae modo in ius adferri adduciue possent, in iure uindicabantur ad hunc modum: qui uindicabat festucam tenebat; deinde ipsam rem adprehendebat, ueluti hominem, et ita dicebat hvnc ego hominem ex ivre qviritivm mevm esse aio secvndvm svam cavsam. sicvt dixi, ecce tibi, vindictam inposvi, et simul homini festucam inponebat; aduersarius eadem similiter dicebat et faciebat; cum uterque uindicasset, praetor dicebat mittite ambo hominem; illi mittebant; qui prior uindica〈uerat, ita alterum interroga〉 bat postvlo anne dicas, qva ex cavsa vindicaveris; ille respondebat ivs feci sicvt vindictam inposvi; deinde qui prior uindicauerat, dicebat qvando tv inivria vindicavisti, d aeris sacramento te provoco; aduersarius quoque dicebat similiter et ego te; scilicet 〈si de re m aeris plurisque agebatur, d, si de minoris,〉 l asses sacramenti nominabant; deinde eadem sequebantur quae cum in personam ageretur; postea praetor secundum alterum eorum uindicias dicebat, id est interim aliquem possessorem constituebat, eumque iubebat praedes aduersario dare litis et uindiciarum, id est rei et fructuum; alios autem praedes ipse praetor ab utroque accipiebat sacramenti, quod id in publicum cedebat. festuca autem utebantur quasi hastae loco, signo quodam iusti dominii, quod maxime sua esse credebant quae ex hostibus cepissent; unde in centumuiralibus iudiciis hasta praeponitur.
§ 17. Si qua res talis erat, ut sine incommodo non posset in ius adferri uel adduci, ueluti si columna aut grex alicuius pecoris esset, pars aliqua inde sumebatur; deinde in eam partem quasi in totam rem praesentem fiebat uindicatio. itaque ex grege uel una ouis aut capra in ius adducebatur, uel etiam pilus inde sumebatur et in ius adferebatur, ex naue uero et columna aliqua pars defringebatur. similiter si de fundo uel de aedibus siue de hereditate controuersia erat, pars aliqua inde sumebatur et in ius adferebatur et in eam partem perinde atque in totam rem praesentem fiebat uindicatio, ueluti ex fundo gleba sumebatur et ex aedibus tegula, et si de hereditate controuersia erat, aeque—
(48 uersus in C perierunt)— qualem — capiendum iudicio | —NAdie xxx ad iudicem capiendum praesto esse de|bebant.
§ 18.Condicere autem denuntiare est prisca lingua. itaque haec quidem actio proprie condictio uocabatur; nam actor aduersario denuntiabat, ut ad iudicem capiendum die xxx adesset. nunc uero non proprie condictionem dicimus actionem in personam 〈esse, qua〉 intendimus dari nobis oportere; nulla enim hoc tempore eo nomine denuntiatio fit.
§ 19. Haec autem legis actio constituta est per legem Siliam et Calpurniam, lege quidem Silia certae pecuniae, lege uero Calpurnia de omni certa re.
§ 20. Quare autem haec actio desiderata sit, cum de eo quod nobis dari oportet, potuerimus aut sacramento aut per iudicis postulationem agere, ualde quaeritur.
§ 10. Some actions are moulded upon, and contain a reference to, the forms of statute-process; others are unrelated and independent. This makes some explanation of the statute-process system necessary.
§ 11. These actions, which our old jurisprudence employed, are called statute-process, either because they were appointed by statute before the edict of the praetor, the source of many new actions, began to be published, or because they followed the statute itself and therefore were as immutable as the statute. Thus, it was held that a man who sued another for cutting his vines, and in his action called them vines, irreparably lost his right because he ought to have called them trees, as the enactment of the Twelve Tables, which confers the action concerning the cutting of vines, speaks generally of trees and not particularly of vines.
§ 12. There were five forms of statute-process, Sacramentum, Judicis postulatio, Condictio, Manus injectio, and Pignoris capio.
§ 13. The actio sacramenti was the general form of action, for wherever no other mode was appointed by statute, the procedure was by sacramentum. It was a form of action attended with risk to the parties, like the modern action to recover money lent, wherein the defendant and plaintiff by the sponsio and restipulatio respectively forfeit a penal sum, if unsuccessful. Accordingly the party who was beaten had to pay the amount of the stake (summa sacramenti) by way of penalty; but it went to the public treasury, sureties on this account having to be given to the Praetor, instead of going as it does now by sponsio and restipulatio to the profit of the winning side.
§ 14. The penal sum of the sacramentum was either five hundred asses or fifty asses; five hundred when the object of dispute was valued at a thousand or upwards, fifty when at less than a thousand. This was provided by the law of the Twelve Tables When, however, personal freedom was the subject of dispute, however valuable a slave the man whose status was litigated might be, the penal sum was only fifty asses. This was enacted by the Twelve Tables in favour of liberty, in order that the vindex or assertor of liberty might never be deterred by the magnitude of the risk.
§ 15. [When the sacramentum was a personal action, that is to say, instituted to enforce an obligation, after giving securities for the stake, the parties left the praetor’s court, having arranged to reappear on the thirtieth day] to receive a judex. When they appeared again the Praetor nominated a judex. This was in pursuance of the lex Pinaria, before which the judex was named at once. If the object of dispute was worth less than a thousand asses, the stake, as before mentioned, was only fifty. After the judex was named, they gave mutual notice to appear before him on the next day but one. At the appearance before the judex, before the case was fully developed, it was stated in a concise and summary form, and this summary statement was called causae conjectio.
§ 16. When the sacramentum was a real action, movables and animals that could be brought or led into the presence of the magistrate were claimed before him in the following fashion. The vindicant held a wand, and then grasping the object itself, as for instance a slave, said: ‘This man I claim as mine by due acquisition, by the law of the Quirites. See! as I have said, I have put my spear (vindicta) on him,’ whereupon he laid his wand upon the man. The adversary then said the same words and performed the same acts. After both had vindicated him, the praetor said: ‘Both claimants quit your hold,’ and both quitted hold. Then the first claimant said, interrogating the other: ‘Answer me, will you state on what title you found your claim?’ and he replied: ‘My putting my spear over him was an act of ownership.’ Then the first vindicant said: ‘Since you have vindicated him in defiance of law, I challenge you to stake as sacramentum five hundred asses’: the opposite party in turn used the same words, ‘I too challenge you.’ That is to say, if the thing was worth more than a thousand asses, they staked five hundred asses or else it was only fifty. Then ensued the same ceremonies as in a personal action. The praetor then awarded to one or other of the claimants possession of the thing pending the suit, and made him bind himself with sureties to his adversary to restore both the object of dispute and the mesne profits or value of the interim possession, in the event of losing the cause. The praetor also took sureties from both parties for the stake (summa sacramenti) which the loser was to forfeit. Now the wand which they used represented a lance, the symbol of absolute dominion, for what a man had captured from the enemy was held to be most distinctly his own. Accordingly in Centumviral trials (where questions of inheritance are decided) a lance is set up in front as an ensign or symbol.
§ 17. If the object of dispute was such as could not conveniently be carried or led before the praetor, as for instance a column, or a herd of cattle, a portion was brought into court, and the formalities were enacted over it as if it were the whole. Thus if it was a flock of sheep or herd of goats, a single sheep or goat, or even a single tuft of hair was taken before the magistrate; if it was a ship or column, a fragment was broken off and brought similarly; if it was land, a clod; or if it was a house, a tile; and if it was a dispute about an inheritance, then in the same way . . . . . . . . . . . . . on the thirtieth day when they were bound to appear in court to receive a judge.
§ 18. Condicere in old Latin was equivalent to denuntiare, to give notice. Hence this action was appropriately called condictio (notice), for the plaintiff used to give notice to the defendant to appear before the praetor on the thirtieth day to receive a judge. The name is now applied with less propriety to a personal action by which we sue for a transfer of property, for notice forms no part of the procedure.
§ 19. This form of statute-process was created by the lex Silia and lex Calpurnia, being prescribed by the lex Silia for the recovery of a certain sum, and extended by the lex Calpurnia to the recovery of any other certain thing.
§ 20. Why a new action was needed, when an obligation to transfer property to a person could be enforced either by Sacramentum or by Judicis postulatio, is a question much discussed.
§§ 10-17. The discovery of the MS. of Gaius by Niebuhr threw a flood of light on the history of Roman Civil Procedure, and not least on the early process by legis actio. Although the forms of legis actio had only an historical interest at the time when Gaius wrote, he begins his account of procedure by noticing them, because, as he tells us, § 10, the actions which were then in use had been to some extent founded on them. (For the literature concerning the legis actiones see Muirhead, § 13.)
The term legis actio is correlative to lege agere, and thus means action determined by lex, i. e. the Twelve Tables and other leges, § 11, agere signifying the observance of the formal acts prescribed by law for prosecuting legal claims. (Cf. Nettleship, Contr. to Latin Lexicog., s. v. actio.) The legis actiones were either legal forms preparatory to bringing a case to trial, or prescribed forms for obtaining execution, rather than actions in the strict sense. To the first class belong the actio sacramenti, per judicis postulationem, and per condictionem; to the latter per manus injectionem and per pignoris capionem. The deposit of a sacramentum by the two parties to a dispute to bring the matter to an issue was the basis of what seems to be the earliest legis actio. In contrast with the other legis actiones the actio sacramenti was a general one, § 13, de quibus enim rebus ut aliter ageretur lege cautum non erat, de his sacramento ageretur.
The forms of action per judicis postulationem and per condictionem seem to have been introduced subsequently with a more limited object. Thus the legis actio sacramenti is both in rem and in personam. But of the procedure in personam we have no information on account of the lacuna in the MS. § 15, which can only be filled up in a general sense. Instead of the assertion of ownership, as in vindicatio, the creditor would claim from the debtor his debt—aio to mihi x milia aeris dare oportere. Instead of a contra-vindicatio there would be a denial on the part of the debtor of the obligation, and on this denial the summa sacramenti would be staked in a manner corresponding to that which was followed in the actio in rem. The proceedings would be simpler and less archaic in character than in the real action. Whether, as has been suggested, the actio sacramenti was at first always a claim to a thing, which in the case of a debt would be the body of the debtor, we do not know, but the conception of obligation is so rudimentary in early times, as to make it not improbable. (Cf. Brinz, Grünhut’s Zeitschr. 1, 23; Muirhead, § 34.)
The sacramentum or money solemnly staked was, it would seem, originally deposited with the Pontifex and applied, when forfeited, to meet the expenses of the public sacrifices; whence its name. (According to Varro de L. L. 5, 180, it was deposited ad Pontem; for different interpretations of this passage see Muirhead, Appendix, N. E.) Afterwards, instead of an actual deposit, security [praeves, praevides, Lex Agr. C. I. L. 1, 200, 46, manceps, praevides, praediaque. According to Nettleship (op. cit. Praes), Praes was originally in all probability an adjective, meaning ready, praes and vas being thus distinguished: Praes is the security for a payment or performance of a contract, while Vas is the security for a person’s appearance in court. Cf. Varro 6, 74, ‘Sponsor’ et ‘Praes’ et ‘Vas’ neque idem . . . . Itaque Praes qui a magistratu interrogatus in publicum ut praestet . . . dicit ‘Praes.’ Vas appellatur qui pro altero vadimonium promittit] for the penal sum was given by both parties to the praetor. Sohm (§ 48, n. 2) supposes that a sacramentum was originally not merely a stake of money against money, but of oath against oath (i. e. sacramentum in its ordinary sense), and hence on account of the force attaching to oaths was binding on the magistrate, but this is only conjectural.
In the ceremony as described by Gaius we may distinguish three stages: first, an oral pleading or altercation, alluded to in the subsequent words ‘sicut dixi’; secondly, a trial by battle, the original method of deciding disputed rights; and thirdly, the reference to peaceful adjudication. We may suppose that on a memorable day in the progress of civilization, before the combat had terminated fatally to one of the combatants, some one like Numa Pompilius, of sufficient authority to make so great an innovation, interposed and induced the parties to refer the dispute to arbitration. The case would afterwards serve as a model and precedent to future litigants; but, from a superstitious fear of losing the sanction of immemorial custom, the earlier stages of the process would still continue to be mimicked in solemn pantomime. So, in English law, trial by Wager of battle, introduced by William the Conqueror, was first partially superseded by the Grand assize, or trial by jury, an alternative substituted by Henry II, and was finally abolished in the reign of George III. ‘The tenant [defendant] shall not be received to wage battle, nor shall issue be joined, nor trial had, by battle, in any writ of right,’ 59 Geo. III, ch. 46.
The use of the rod or wand as representative of the spear, the symbol of dominion, may be paralleled in English law by the delivery of a staff as the symbol of power and possession in the conveyance of copyholds. ‘The conveyance of copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or verge, and then from the lord to the purchaser by redelivery of the same in the presence of a jury of tenants,’ Blackstone, 2, 20.
§ 16. The specification of the title or ground of claim (expressio causae) in a real action (secundum suam causam, sicut dixi) may have been, as Bethmann-Hollweg supposes (R. C. P. 1, 139), limited to actions where the object claimed was a person, and was then designed to distinguish whether the person was claimed as a son, wife, bondsman (mancipium), or slave. See 1 § 134, comm. More probably, however, it was universally required in statute-process, though not in the formulary system, for the purpose of ascertaining in all cases the ground on which each party claimed, as whether it was on account of a mancipation, a surrender before the magistrate, or usucapion, 2 § 43, comm.
After completing his account of Sacramentum, Gaius probably proceeded to explain the nature of Judicis postulatio in the 48 lines of the MS., § 17 a, which are wanting, though in the latter part of them he had gone on to treat of the condictio. Of its process we have a fragment in the formula derived from Valerius Probus, the first two letters of which, however, are very doubtful: Te, Praetor, judicem arbitrumve postulo uti des, ‘I pray you, Praetor, to appoint an arbiter or judge.’ It seems to be distinguished from actio sacramenti in personam and from condictio not only in respect of its form, but by the greater freedom allowed to the judex or arbiter, appointed by the Praetor, at the request of one of the parties, to try the suit. Thus it was apparently the prototype of actions bonae fidei, as opposed to actions stricti juris, that is of actions for enforcing obligations which might require an equitable balancing by the judex or arbiter of opposite claims, and an assessment by him of such damages as good faith required to be paid to the plaintiff. It would thus be suitable in cases for which the actio sacramenti in personam would supply an insufficient remedy. A party taking advantage of this procedure would have to show that his case came under the provisions of the Twelve Tables. or of some other lex, and that it was suitable to an arbitrium. The actions Finium regundorum, Familiae herciscundae, Aquae pluviae arcendae, de arboribus succisis, which are mentioned in or derived from the Twelve Tables, appear to have been tried by an arbiter or arbiters, that is, to have been forms of Judicis postulatio. For an account of views of different writers respecting the origin and nature of judicis postulatio see Muirhead, Roman Law, § 35.
The phrase manum conserere is sometimes used, though not by Gaius, in reference to the actio sacramenti (Cic. pro Mur. 12, 26; Gell. 20, 10; Varro, L. L. 6, 64), meaning, perhaps, the act of the parties in laying hold at the same time of the object in dispute or engaging in a conflict about it. This mimic conflict originally took place on the land itself, which was vindicated, in the presence of the magistrate (in jure manum conserere), but later a practice grew up, which is referred to by Cicero, for the parties, by order of the magistrate, going by themselves attended by witnesses to the place, and after duly observing the ceremonial returning to the Court. Finally this was discontinued, and as we see by the text, § 17, a part of the thing was brought in the first place before the magistrate to represent the whole.
After the vindication and counter-vindication had taken place, the praetor had to assign interim possession of the vindiciae, or object which was claimed, to one of the parties, and to take security from him that he would be ready to produce this object of litigation (called here lis, cf. Cic. Mur. 12, 27) and the mesne profits, which are denoted by the term vindiciae (praedes litis et vindiciarum). Gaius gives no indication of the principle on which the praetor acted in making this assignment, simply saying secundum alterum eorum vindicias dicebat. In later process the possessor, who was the defendant in the action, would be allowed to remain in possession, on giving security that he would satisfy the judgment, and it would be for the vindicant to prove his title. The difference here is that the two parties stand on an equal footing, each of them in turn vindicating the thing, and so neither of them being in the position of defendant. It seems reasonable, however, to suppose that the praetor would be governed by the same motives in making his award as influenced him in granting the possessory interdicts, so that the party seeking to evict the other would not as a rule obtain possession till he had proved his title.
The Condictio was unknown to the Twelve Tables, having been created by the lex Silia of a somewhat later but uncertain date, and extended by the lex Calpurnia, the date of which is also uncertain. We see by the text, § 20, that the reason for instituting another actio in personam, when the actio sacramenti and per judicis postulationem were already available, was not clear to the jurists at the time when Gaius wrote. But the object of the Lex Silia in instituting the condictio may have been to supply a more prompt and efficient remedy for the recovery of money debts than previously existed, a reform in procedure which would be required when summary execution on account of nexum was abolished. By this new form of action a creditor could forthwith give notice to his debtor, called condictio, from which the proceeding derives its name, to appear before the magistrate in thirty days to have a judex appointed. If, as there is some reason for thinking, the serving of this notice was an extra-judicial act, it would be easily executed by the party interested. And should the debt not have been satisfied within the thirty days, the creditor was entitled to a judicium, depending on a simple and clearly defined issue. Thus the proceedings in jure would be much curtailed. Moreover, condictio had the advantage that it could be accompanied by the sponsio and restipulatio, § 13, a wager entered into by mutual stipulations of the parties conditioned for the forfeiture by the vanquished to the successful party instead of to the treasury of one third of the sum in dispute, in addition, on the part of the defendant, to the original debt, § 171. The stake or penalty is called by Cicero legitima pars, ‘statutable sum’: Pecunia petita est certa; cum tertia parte sponsio facta est. . . . Pecunia tibi debebatur certa quae nunc petitur per judicem, in qua legitimae partis sponsio facta est, Pro Roscio, 4, 5: whence we may suppose that this stake or penalty was fixed by the lex Silia, the statute which created the procedure by condictio.
At this period then, on account of the advantages of judicis postulatio and condictio, the Sacramentum would be practically confined to Real actions before the Centumviral Court: Condictio would be the appropriate Personal action for recovering a certain sum or thing due upon a mutuum, which had taken the place of nexum, and also for enforcing a promise made by stipulation to pay certa pecunia or certa res, such promise by stipulation being perhaps first made actionable by the lex Silia, while the same process would be applicable to a transcripticium nomen; and Judicis postulatio was possibly the appropriate action in the case of arbitria, and for enforcing obligations to reconvey property which had been mancipated subject to a fiducia. But it must be remembered that the law of contract was at this time confined within narrow limits.
§ 21. Per manus iniectionem aeque 〈de〉 his rebus agebatur, de quibus ut ita ageretur, lege aliqua cautum est, ueluti iudicati lege xii tabularum. quae actio talis erat: qui agebat, sic dicebat qvod tv mihi indicatvs (siue damnatvs) es sestertivm x milia, qvandoc non solvisti, ob eam rem ego tibi sestertivm x milivm ivdicati manvminicio, et simul aliquam partem corporis eius prehendebat. neclicebat iudicato manum sibi depellere et pro se lege agere; sed uindicem dabat, qui pro se causam agere solebat; qui uindicem non dabat, domum ducebatur ab actore et uinciebatur.
§ 22. Postea quaedam leges ex aliis quibusdam causis pro iudicato manus iniectionem in quosdam dederunt: sicut lex Publilia in eum, pro quo sponsor dependisset, si in sex mensibus proximis, quam pro eo depensum esset, non soluisset sponsori pecuniam; item lex Furia de sponsu aduersus eum, qui a sponsore plus quam uirilem partem exegisset; et denique conplures aliae leges in multis causis talem actionem dederunt.
§ 23. Sed aliae leges ex quibusdam causis constituerunt quasdam actiones per manus iniectionem, sed puram, id est non pro iudicato: ueluti lex 〈Furia〉 testamentaria aduersus eum, qui legatorum nomine mortisue causa plus m assibus cepisset, cum ea lege non esset exceptus, ut ei plus capere liceret; item lex Marcia aduersus faeneratores, ut si usuras exegissent, de his reddendis per manus iniectionem cum eis ageretur.
§ 24. Ex quibus legibus et si quae aliae similes essent, cum agebatur, 〈reo licebat〉 manum sibi depellere et pro se lege agere. nam et actor in ipsa legis actione non adiciebat hoc uerbum pro ivdicato, sed nominata causa ex qua agebat ita dicebat ob eam rem ego tibi manvm inicio; cum hi, quibus pro iudicato actio data erat, nominata causa ex qua agebant ita inferebant ob eam rem ego tibi pro ivdicato manvm inicio. nec me praeterit in forma legis Furiae testamentariae pro ivdicato uerbum inseri, cum in ipsa lege non sit; quod uidetur nulla ratione factum.
§ 25. Sed postea lege Vallia, excepto iudicato et eo pro quo depensum est, ceteris omnibus, cum quibus per manus iniectionem agebatur, permissum est sibi manum depellere et pro se agere. itaque iudicatus et is pro quo depensum est etiam post hanc legem uindicem dare debebant, et nisi darent, domum ducebantur. idque quamdiu legis actiones in usu erant, semper ita obseruabatur; unde nostris temporibus is, cum quo iudicati depensiue agitur, iudicatum solui satisdare cogitur.
§ 21. Manus injectio was the procedure specially prescribed by statute in certain circumstances; as, for instance, against a judgment debtor by the law of the Twelve Tables. The procedure was as follows: the plaintiff said, ‘Whereas you have been adjudged or condemned to pay me ten thousand sesterces, which sum you have failed to pay, therefore I arrest you as judgment debtor for ten thousand sesterces,’ and at the same time laid hands on him; and the debtor was not allowed to resist the arrest, or use the statute-process in his own defence, but gave a vindex to advocate his cause, or, in default, was taken prisoner to the plaintiff’s house, and put in chains.
§ 22. Afterwards manus injectio was given by various laws against quasi judgment debtors, as by the lex Publilia against the principal whose debt had been paid by his sponsor, unless he indemnified his sponsor within six months from the payment of the debt; by the lex Furia de Sponsu against the creditor who had exacted from one of several sponsors more than his ratable share; and by various other statutes in a number of cases.
§ 23. Other statutes established that certain actions on particular grounds should be enforced by manus injectio, but it was simple manus injectio, not that applicable to quasi judgment creditors: as the lex (Furia) testamentaria in the action against the legatee or donee in contemplation of death who received more than a thousand asses if not included in certain classes privileged by that statute; and the lex Marcia against usurers compelled those who exacted interest on a loan to refund by manus injectio.
§ 24. These statutes and certain others permitted the defendant to resist arrest and use the statute-process in his own defence, for in this case the plaintiff could not in carrying on the statute-process add the term quasi judgment debtor, but, after naming his cause of action, said simply, ‘I therefore arrest you’; whereas, if he proceeded as quasi judgment creditor, after naming the cause he said, ‘Therefore I arrest you as quasi judgment debtor.’ I am aware that in proceeding under the lex Furia testamentaria the plaintiff added the words, ‘As quasi judgment debtor,’ though they are not inserted in the law; but this seems to have been done in an irrational way.
§ 25. But subsequently the lex Vallia permitted all defendants sued by manus injectio, except the judgment debtor and the principal indebted to his sponsor, to resist arrest and use the statuteprocess themselves in their own defence. Hence, the judgment debtor and the principal indebted to his sponsor for payment (depensum) had even after this law was passed either to give a vindex or else were carried off to the creditor’s house; and this practice lasted as long as statute-process was in force. And thus it is that at the present day the defendant in the actio judicati and in the actio depensi must give security for the payment of the sum in which they may be condemned.
For the proceedings in Manus injectio cf. 3 § 77, comm.
Manus injectio seems to have had two meanings:
(1) Self-help, or redress of the plaintiff by his own act, when the creditor arrested the debtor privately by his own authority.
In this case the award of a magistrate (addictio) would not be a necessary preliminary to abduction (secum duci): but self-redress was, as a general remedy, only tolerated when society was very loosely consolidated; and abductio without preceding addictio must at an early period have become, except in particular cases, illegal. The final blow struck by the state at Self-help was the constitution of the three emperors, a. d. 389, 3 § 209, comm.
But a creditor was entitled to arrest his debtor of his own accord, subject to certain formalities, till a comparatively late time in case of resistance to in jus vocatio; Si calvitur pedemve struit, manum endo jacito, Fragment of the Twelve Tables, Tab. 1. ‘If the defendant on being summoned to appear before the magistrate tergiversates or attempts to flee, the plaintiff may proceed to Manus injectio.’
We may conjecture also that avoidance of in jus vocatio by latitation or keeping house rendered a defendant liable to manus injectio. Such is the probable explanation of two fragments of the Twelve Tables, Tab. 1: Si in jus vocat, ito. Ni it, antestamino, igitur em capito. . . . Tab. 2, 3: Cui testimonium defuerit, is tertiis diebus ob portum obvagulatum ito. ‘On a service of summons to appear before the magistrate, if the defendant refuse obedience, the plaintiff shall obtain attestation of the fact, and then take him by force. In default of such attestation (i. e. if the defendant avoid service by keeping out of the way) the plaintiff on three market-days shall stand before the defendant’s door and wawl (loudly summon him to appear(?), and after this the defendant shall be liable to manus injectio).’ Compare the Hindoo custom of ‘sitting dharṅa,’ i. e. fasting at the door of a debtor. See Maine’s Early History of Institutions, pp. 40, 297-298.
(2) Manus injectio ceased to be a mere act of legalized self-redress, and became the part of a statute-process (legis actio) whenever it took place before the magistrate, either a Vindex interposing, or, in manus injectio pura, in case of the alleged debtor becoming himself and not by means of a vindex defendant in a judicium for determining whether he was liable to the process, Ihering, 11, c. The vindex (the word is like vindicatio and vindiciae derived from vim dicere) was in an analogous position to the assertor libertatis, since a person who was himself the object of a suit could not himself be defendant in it. A debtor who was addicted to his creditor did not, however, thereby lose either his freedom or his citizenship, though incapable while his confinement lasted of exercising his rights.
The right of a creditor to carry off his debtor under the award (addictio) of a magistrate, might either be founded on a previous judgment against the debtor (judicatus), or be given by some special statute against other debtors who were treated as judgment debtors (pro judicato). In both these cases the debtor could only defend himself by a vindex. But in some cases where manus injectio came to be allowed, as Gaius explains, § 24, the process was made less harsh, and the defendant was allowed to defend himself without supplying a vindex (manus injectio pura). It is to be noticed that Gaius does not refer to the case of the debtor bound in early law by nexum and subject to manus injectio, cf. 3 §§ 88, 89.
§§ 22-25. The lex Furia de sponsu (3 § 121), (as to the date of this law and the question whether it is referred to by Cicero see Karlowa, Rom. Rechtsgesch. 2, 735, and Roby 2, 30, n. 2), limited the obligation of the sponsor and fidepromissor to two years, and divided it equally among all the sponsores and fidepromissores without regard to their solvency.
The word exegisset suggests that the lex Furia de sponsu was not a lex perfecta;—that the limitation of the sponsor’s liability to a proportionate part of the principal debt was only effected by a penalty being imposed on the creditor who exacted the whole obligation.
If we assume with Ihering that the lex Furia de sponsu and the lex Furia testamentaria (2 § 225) were separate clauses of the same enactment, we can understand why manus injectio pro judicato, which was expressly made the remedy in lex Furia de sponsu, was extended by interpretation to lex Furia testamentaria: although this extension, according to Gaius, § 24, violated the rules of statute-process, which ought to rest in its minutest details on the express provisions of a statute.
The lex Marcia is an early law of uncertain date, cf. Livy, 7, 21. Its poena, like that of lex Furia testamentaria, was quadruplum: Cato de Re Rustica, quoted by Gellius.
The general opinion now is that execution against an insolvent debtor in the old Roman law was always directed immediately against the person of the debtor; it is certain that execution against his entire property, under the name of Bonorum venditio, 3 § 77, was a later invention of the Praetor. Savigny, however, supposes that under the law of the Twelve Tables itself execution against the person was confined with certain exceptions to judgments on an actual loan of money, and that execution on other judgments was always against the estate: and by this view, he seeks to throw light on an obscure problem, the nature of the ancient contract of Nexum.
A case, other than a judgment debt, in which the creditor might proceed by Manus injectio seems to be, besides those mentioned in the text, Furtum manifestum, 3 § 189.
With liability to Manus injectio for a quasi judgment debt we may compare the arrest of an absconding debtor in the English law by a writ of capias ad respondendum. As the Roman debtor had to find a vindex or responsible representative, so the English debtor must either remain in custody or put in bail, that is, find sureties who will undertake that, if judgment is obtained against him, either he shall surrender into custody, or shall pay the debt and costs recovered, or that they themselves will pay them for him. The Roman Vindex apparently became responsible for twice the amount of the original debt.
§ 25. Bethmann-Hollweg, 2 § 111, conjectures that under the formulary procedure actio judicati, when the judicium was legitimum (§ 103), was fictitious, and had a formula like the following: Quod Numerius Negidius Aulo Agerio sestertium decem milia condemnatus est, Si Aulus Agerius Numerio Negidio manus injecisset: tum quidquid Numerium Negidium Aulo Agerio dare facere oporteret: ejus, judex, Numerium Negidium Aulo Agerio duplum condemna. If the judicium was imperio continens, he supposes that the actio judicati was in factum with the following formula: Si paret Numerium Negidium Aulo Agerio sestertium decem milia condemnatum esse eamque pecuniam intra legitimum tempus solutam non esse: quanti ea res erit, tantae pecuniae duplum judex Numerium Negidium Aulo Agerio condemna. (But see in respect of these highly conjectural formulae Lenel’s very unfavourable remarks. Das Edictum Perpetuum, p. 354, &c.) Under the later emperors when the formulary procedure was abolished, the actio judicati as a means of execution was superseded by a more direct process generally in the form of Pignoris capio. Thirty days were allowed for payment, 3 § 78; then interest began to run at 24 per cent. per annum (duo centesimae per month) which Justinian reduced to 12 p. c.
§ 26. Per pignoris capionem lege agebatur de quibusdam rebus moribus, 〈de quibusdam rebus〉 lege.
§ 27. Introducta est moribus rei militaris. nam et propter stipendium licebat militi ab eo qui aes tribuebat, nisi daret, pignus capere; dicebatur autem ea pecunia, quae stipendii nomine dabatur, aes militare. item propter eam pecuniam licebat pignus capere, ex qua equus emendus erat; quae pecunia dicebatur aes equestre. item propter eam pecuniam, ex qua hordeum equis erat conparandum; quae pecunia dicebatur aes hordiarium.
§ 28. Lege autem introducta est pignoris capio ueluti lege xii tabularum aduersus eum, qui hostiam emisset nec pretium redderet; item aduersus eum, qui mercedem non redderet pro eo iumento, quod quis ideo locasset, ut inde pecuniam acceptam in dapem, id est in sacrificium, inpenderet. item lege censoria data est pignoris capio publicanis uectigalium publicorum populi Romani aduersus eos qui aliqua lege uectigalia deberent.
§ 29. Ex omnibus autem istis causis certis uerbis pignus capiebatur, et ob id plerisque placebat hanc quoque actionem legis actionem esse; quibusdam autem 〈contra〉 placebat, primum quod pignoris capio extra ius peragebatur, id est non apud praetorem, plerumque etiam absente aduersario, cum alioquin ceteris actionibus non aliter uti possent quam apud praetorem praesente aduersario, praeterea quod nefasto quoque die, id est quo non licebat lege agere, pignus capi poterat.
§ 26. Pignoris capio (distress) was employed in some cases by virtue of custom, in others by statute.
§ 27. By custom, in obligations connected with military service; for the soldier could distrain upon his paymaster for his pay, called aes militare; for money to buy a horse, called aes equestre; and for money to buy barley for his horse, called aes hordiarium.
§ 28. By statute as by the law of the Twelve Tables which rendered liable to distress on default of payment the buyer of a victim and the hirer of a beast of burden lent to raise money for a sacrifice to Jupiter dapalis. So too the law of the Censors gave the power of distress to the farmers of the public revenue of the Roman people (publicani) against those in default for taxes (vectigalia) due under any statute.
§ 29. As in all these cases the distrainor used a set form of words, the proceeding was generally considered a form of statuteprocess. Some, however, held otherwise, because it was performed in the absence of the praetor and generally of the debtor; whereas the other forms of statute-process could only be enacted in the presence of the praetor and the adversary; besides, it could take place on an unlawful day (dies nefastus) (2 § 279), that is, on a day when statute-process was not allowed.
§§ 26-29. Distress in English law bears a certain resemblance to Execution. Each is the application of constraint to a defendant’s will by seizure of his goods. But making a distress is a legalized act of self-redress by a private person, as of a landlord for securing his rent, and may take the place of or precede an action: execution follows after judgment obtained in an action, and is the act of the executive at the command of the sovereign. The pignoris capio of the older Roman law corresponded to distress; the pignoris capio of the formulary system generally was a mode of execution.
Perhaps pignoris capio, like manus injectio, was itself simply an act of regulated Self-redress, when there was no other legal remedy available, and did not amount to legis actio unless it led to a suit in which the legality of the distraint was brought into question. Cf. Sohm, § 48, and the literature there cited.
Pignoris capio in the older system of procedure was a remedy allowed in cases of a public character, that is, in claims relating to military service, to religion, or to the revenue. In the first case, § 27, the remedy was established by custom, that is, was anterior to the Twelve Tables; in the second case, § 28, it was given by the Twelve Tables; in the third case, § 28, it was created by law subsequent to the Twelve Tables.
We have mention of the aes equestre and hordiarium, § 27, in Livy’s account of the Servian constitution, Livy 1. 43. ‘Each soldier received ten thousand asses for the purchase of a horse, and for its maintenance a widow was assigned, who was bound to pay two thousand asses a year.’
The institution appears to have been transplanted from Greece. Cicero mentions it as in force at Corinth, De Republica, 2, 20, 36. ‘Tarquinius Priscus instituted the present organization of the cavalry. At Corinth, whence he came, there was a practice of allotting horses at the public expense and taxing the childless and widows for their maintenance.’ The private persons thus appointed military paymasters appear to have been called tribuni aerarii, Gellius 7, 10. In later times soldiers were paid by the Quaestors from the public treasury.
We have something similar in the Laws of Plato: περὶ δὲ . . . λειτουργιω̂ν, ὁπόσα περὶ θυσίας εἰρηνικη̂ς ἢ πολεμικω̂ν εἰσϕορω̂ν εἵνεκα, πάντων τω̂ν τοιούτων τὴν πρώτην ἀνάγκην ἰατὴν εἰ̂ναι τη̂ς ζημίας τοɩ̂ς [δὲ] μὴ πειθομένοις ἐνεχυρασίαν τούτοις, οἷς [Editor: illegible character]ν πόλις ἅμα καὶ νόμος εἰσπράττειν προστάττῃ, τω̂ν δὲ ἀπειθούντων ταɩ̂ς ἐνεχυρασίαις πρα̂σιν τω̂ν ἐνεχύρων ε[Editor: illegible character]ναι, τὸ δὲ νόμισμα γίγνεσθαι τῃ̂ πόλει, Laws, 12, 4. ‘If a public duty relating to religion or war is unperformed, the first stage of coercive penalty shall be defeasible by submission of the defaulter, and his goods shall be merely taken in distress by the lawfully appointed official; but if he continue contumacious, the distress shall be sold and the proceeds shall be confiscated.’
§ 28. Raising money for a sacrifice by letting out a beast of burden seems to us to be an exceptional circumstance, but in primitive times it may have been a common practice, originally sanctioned by jus sacrum. (For the importance of distress in early law, before regular courts of law were established, and for instances of its exercise, see Maine’s Early History of Institutions, Lect. IX.)
A praediator is defined by Gaius, qui mercatur a populo, above, 2 § 61. A lex praediatoria which might perhaps be passed to enable things thus taken in distress for taxes to be sold, is mentioned by Suetonius: Ad eas rei familiaris angustias decidit, ut cum obligatam aerariis fidem liberare non posset, in vacuum lege praediatoria venalis pependerit sub edicto praefectorum, Claudius 9. ‘He was so impoverished, that he could not discharge his obligation to the treasury, and the prefects advertised his goods for sale without reserved price, as provided by lex praediatoria.’ On the first day of a sale the amount of the debt due to the state was announced as a reserved price, or minimum for which the goods would be sold. If no bidder appeared on these terms, the goods were offered on a subsequent day without reserve (in vacuum).
§ 30. Sed istae omnes legis actiones paulatim in odium uenerunt. namque ex nimia subtilitate ueterum qui tunc iura condiderunt eo res perducta est, ut uel qui minimum errasset, litem perderet. itaque per legem Aebutiam et duas Iulias sublatae sunt istae legis actiones effectumque est, ut per concepta uerba, id est per formulas litigemus.
§ 31. Tantum ex duabus causis permissum est lege agere: damni infecti et si centumuirale iudicium futurum est. sane quidem cum ad centumuiros itur, ante lege agitur sacramento apud praetorem urbanum uel peregrinum [praetorem]. damni uero infecti nemo uult lege agere, sed potius stipulatione quae in edicto proposita est obligat aduersarium suum, idque et commodius ius et plenius est. per pignoris capionem—|NA (23 uersus in C legi nequeunt) —apparet.
§ 32.Item in ea forma, quae publicano proponitur, talis fictio est, ut quanta pecunia olim, si pignus captum esset, id pignus is a quo captum erat luere deberet, tantam pecuniam condemnetur.
§ 33. Nulla autem formula ad condictionis fictionem exprimitur. siue enim pecuniam siue rem aliquam certam debitam nobis petamus, eam ipsam dari nobis oportere intendimus; nec ullam adiungimus condictionis fictionem. itaque simul intellegimus eas formulas, quibus pecuniam aut rem aliquam nobis dari oportere intendimus, sua ui ac potestate ualere. eiusdem naturae sunt actiones commodati, fiduciae, negotiorum gestorum et aliae innumerabiles.
§ 34. Habemus adhuc alterius generis fictiones in quibusdam formulis, ueluti cum is, qui ex edicto bonorum possessionem petiit, ficto se herede agit. cum enim praetorio iure, non legitimo succedat in locum defuncti, non habet directas actiones, et neque id quod defuncti fuit potest intendere svvm esseneque id quod ei debebatur potest intendere 〈dari〉 sibi oportere; itaque ficto se herede intendit uelut hoc modo ivdex esto. si a | agerivs (id est si ipse actor) l. titio heres esset, tvm 〈si evm〉 fvndvm | de qvo agitvr ex ivre qviritivm eius esse oporteret; et si— de—, |NA praeposita simili fictione heredis ita subicitur tvm si pare|ret n. negidivm 〈a.〉 agerio sestertivm x milia dare oportere.
§ 35. Similiter et bonorum emptor ficto se herede agit; sed interdum et alio modo agere solet. nam ex persona eius cuius bona emerit sumpta intentione conuertit condemnationem in suam personam, id est ut, quod illius esset uel illi dari oporteret, eo nomine aduersarius huic condemnetur; quae species actionis appellatur Rutiliana, quia a praetore P. Rutilio, qui et bonorum uenditionem introduxisse dicitur, conparata est. superior autem species actionis, qua ficto se herede bonorum emptor agit, Seruiana 〈uocatur.
§ 36.Item usucapio fingitur in ea actione quae Publiciana〉 uocatur. datur autem haec actio ei qui ex iusta causa traditam sibi rem nondum usucepit eamque amissa possessione petit. nam quia non potest eam ex ivre qviritivm svam esse intendere, fingitur rem usucepisse et ita quasi ex iure Quiritium dominus factus esset intendit, ueluti hoc modo ivdex esto. si qvem hominem a. agerivs emit 〈et〉 is ei traditvs est, anno possedisset, tvm si evm hominem de qvo agitvr ex ivre quiritivm eivs esse oporteret et reliqua.
§ 37. Item ciuitas Romana peregrino fingitur, si eo nomine agat aut cum eo agatur, quo nomine nostris legibus actio constituta est, si modo iustum sit eam actionem etiam ad peregrinum extendi: ueluti si furti agat peregrinus aut cum eo 〈agatur. nam si cum peregrino〉 agatur, formula ita concipitur ivdex esto. si paret 〈l. titio ope〉 consiliove dionis hermaei filii fvrtvm factvm esse paterae avreae, qvam ob rem evm, si civis romanvs esset, pro fvre damnvm decidere oporteret et reliqua. item si peregrinus furti agat, ciuitas ei Romana fingitur. similiter si ex lege Aquilia peregrinus damni iniuriae agat aut cum eo agatur, ficta ciuitate Romana iudicium datur.
§ 38. Praeterea aliquando fingimus aduersarium nostrum capite deminutum non esse. nam si ex contractu nobis obligatus obligataue sit et capite deminutus deminutaue fuerit, uelut mulier per coemptionem, masculus per adrogationem, desinit iure ciuili debere nobis, nec directo intendi potest sibi dare eum eamue oportere; sed ne in potestate eius sit ius nostrum corrumpere, introducta est contra eum eamue actio utilis rescissa capitis deminutione, id est in qua fingitur capite deminutus deminutaue non esse.
§ 30. But all these branches of statute-process fell gradually into great discredit because the excessive subtlety of the ancient jurists made the slightest error fatal; and accordingly they were abolished by the lex Aebutia and the two leges Juliae, which introduced in their stead the system of formulas or written instructions of the praetor to the judex.
§ 31. Two cases only were reserved for statute-process, apprehended damage and centumviral causes. When there is recourse to the centumvirs, statute-process by way of sacramentum either before the praetor urbanus or peregrinus, as may happen, is the preliminary proceeding. For protection, however, against apprehended damage a plaintiff no longer resorts to statute-process, but stipulates to be indemnified by the defendant in the manner provided by the edict, whereby he is put to less trouble and obtains ampler redress . . .
§ 32. So the formula provided for the farmer of the revenue contains a fiction directing that the debtor be condemned in the sum for which formerly, if his goods had been distrained on, he would have had to ransom the distress.
§ 33. But no formula is moulded on a fictitious legis actio per condictionem; for when we sue for a certain thing or sum of money, our intentio names the very thing or sum for which we sue, without any reference to a fiction of condictio; so that the present formulae by which we claim that a fixed sum of money or that some particular thing is due to us are understood to depend on their own force. Similarly independent of the elder system are the actions of loan for use, fiduciary agreement, unauthorized transaction of another person’s affairs, and innumerable others.
§ 34. Fictions of a different kind are employed in certain formulae, as for example when the bonorum possessor or praetorian successor sues under a fiction that he is civil heir. For being only the praetorian, not the civil heir, he has no direct action, and can neither claim in the intentio of the formula to be [Quiritary] owner of the things belonging to the deceased, nor that the debtor is bound [by civil law] to pay the debts due to him. Accordingly, the intentio feigns him to be civil heir, and runs as follows: ‘Let C D be judex. Supposing Aulus Agerius (plaintiff) were the civil heir of Lucius Titius, if in that supposition it be proved that the land in question ought to be his by the law of the Quirites;’ or, in case of a debt, after a similar fiction of his being civil heir the intentio proceeds: ‘if in that supposition it be proved that Numerius Negidius (defendant) ought [by civil law] to pay to Aulus Agerius ten thousand sesterces: then let the defendant be condemned,’ &c.
§ 35. So the purchaser of a bankrupt’s estate may either feign himself to be civil heir, or may use a different form [feigning to be procurator of the insolvent]: for he may name the insolvent in the intentio and himself in the condemnatio, requiring the defendant to restore or pay to himself any property that belonged or any debt that was due to the insolvent. This form of action is called Rutilian, from the praetor Rutilius, who invented execution against the entire estate of the insolvent (bonorum venditio): the action wherein the plaintiff feigns himself civil heir is called Serviana.
§ 36. So there is a fiction of usucapion in the Publician action, whereby a man claims a thing which had been delivered to him on a valid legal ground which he has lost possession of before having acquired ownership of it by usucapion. Being unable to claim it in the intentio as his property by the law of the Quirites, he is feigned to have acquired it by usucapion, and thus to have become owner by quiritary right, and his intentio runs as follows: ‘Let C D be judex. Supposing that the slave who was sold and delivered to Aulus Agerius had continued during a year in his possession, if in that case the slave would have legally belonged to Aulus Agerius by the law of the Quirites, then condemn the defendant,’ &c.
§ 37. So an alien is feigned to be a Roman citizen, if he sue or be sued in an action which would be valid as between Roman citizens, and it is an action which may justly be extended to aliens. For instance, if an alien sues or is sued for theft, in the latter case the formula runs as follows: ‘Let C D be judex. If it be proved that Dio son of Hermaeus stole—or, if it be proved that Dio son of Hermaeus aided and abetted in stealing—from Lucius Titius a golden cup, for which, if he had been a Roman citizen, he would have had to make composition for theft, then condemn Dio son of Hermaeus,’ &c. So if an alien sue for theft or sue or be sued under the Aquilian law for damage to property, he is feigned to be a Roman citizen.
§ 38. Again, we may feign that the defendant has not undergone a capitis deminutio: for if we make a contract with a person who afterwards undergoes a capitis deminutio, as an (independent) female by her coemption, or an independent male by his adrogation, he or she ceases by the civil law to be our debtor, and we cannot directly declare in the intentio that he or she is bound to convey something to us. To protect our rights, however, from extinction by the act of another, the praetor grants a fictitious action, rescinding or ignoring the defendant’s capitis deminutio, i. e. supposing by a fiction that the debtor had not undergone it.
§ 30. The lex Aebutia, of uncertain date, was probably passed not long after the middle of the second century b. c. The leges Juliae are supposed to be leges judiciariae passed by Augustus. What were the respective shares of these different enactments in bringing about the important change of procedure Gaius mentions must remain uncertain. After the legis actiones were abolished as modes of proceeding in civil suits their forms still survived in the ceremonies of adoption, the manumission of a slave, the emancipation of a son, and conveyance by in jure cessio.
It may be questioned whether Gaius has exactly laid his finger on the deficiency of the system of Statute-process when he alleges its excessive formalism or subtlety (nimia subtilitas) as the cause of its failure. Its shortcoming was not so much its formalism (the following system was equally formalistic) as (1) its want of safeguards against errors of form and (2) its want of power of expansion.
(1) Though the Formula was perhaps as literally and rigorously interpreted as the form of Statute-process, yet the period at which the Formula was fixed in the Formulary system diminished the danger of the defeat of a righful claim by an error in the selection of the appropriate form. The formula of an action was not determined till the close of a debate before the magistrate (in jure) in which both parties were assisted by jurists and had disclosed, in part at least, their pretensions, and brought the true issue to light. Statute-process was formal at an earlier stage and from the inception of the proceedings: and the kinds of statute-process were specially characterized and denominated by their first stages even when these were extra-judicial or outside the court, as in manus injectio and pignoris capio. In Statute-process an error of form at any of the stages preceding litis contestatio was fatal to the party by whom it was committed. In the Formulary system no litigant could commit a suicidal error—no form was fixed whereby his claim could be defeated—before the litis contestatio.
(2) A plaintiff had no remedy unless he could show that his case had been contemplated by the legislator: but the legislator had been too much occupied with foreign war and domestic dissension to think of developing the private code. Jurisprudence had been busy in framing such actions as the system admitted; but jurisprudence had little voice and little scope. If the law was silent, if there was any hiatus or casus omissus, jurisprudence was not allowed to fill up the void. The praetor himself had his hands tied and was a mere piece of machinery. The institution of the Formulary process gave an organ to the voice of jurisprudence, and the power of issuing edicts and inventing new forms of action constituted the praetor, in fact though not in name, a second legislator. The enlarged scope given to the conscience of jurisprudence by the new powers of the praetor produced an enlargement of the scheme of remedies such as followed in England from the recognition of the royal conscience as a source of civil legislation and the erection, beside and in addition to the common law courts, of a court of Chancery presided over by the guardian of the conscience of the king. Ihering, § 47; cf. Sohm, § 49.
Conceptae feriae denoted holidays specially appointed by the magistrate, as opposed to feriae stativae: so concepta verba seems to denote the formulae accommodated by the magistrate to the various grounds of litigation, as opposed to the certa verba, § 29, or more immutable formulae prescribed to the litigants in Statute-process by the legislator. The term, then, expresses elasticity. Cf. Roby, 2, p. 347, n. 2.
We may observe by anticipation that the Formulary system, after an existence of nearly five hundred years, was brought by the ingenuity of lawyers into the same discredit and experienced the same fate as the system it had displaced. First Diocletian, a. d. 294, required provincial governors as a rule to hear and determine all causes themselves, instead of commissioning official judices to hear and determine them, Cod. 3, 3, 2; cf. Cod. 3, 3, 5. ‘Governors of provinces shall themselves determine the causes which they have been in the habit of referring to inferior (pedaneos) judges, unless prevented from doing so by pressure of business or the excessive number of causes.’ Pedaneus judex signifies in this passage not the ordinary judex of the Formulary system, who acted with an independent authority, but a subordinate official to whom the governor delegated his extraordinaria cognitio for trying cases. From the time of Diocletian it was the ordinary practice that the magistrate should not send the case to a private judex to be tried under a formula, but should judge in person by virtue of his extraordinary authority, though under certain circumstances he could, as we see by the above passage, appoint an official called judex pedaneus as his substitute. Thus cognitio extraordinaria, which in earlier times was only employed occasionally in exceptional cases, had become the rule. Afterwards the emperors Constantius and Constans, a. d. 342, entirely abolished formulae. Juris formulae, aucupatione syllabarum insidiantes, cunctorum actibus radicitus amputentur, Cod. 2, 57, 1. ‘Legal formulae, with their syllabic snares and pitfalls, are hereby abolished in every procedure.’
§ 31. The proceeding under the edict in Damni infecti was as follows: If A apprehended damage to his property from the downfall of a dilapidated house (aedes vitiosae, ruinosae) belonging to B, he might apply (postulare) to the praetor and, having affirmed his case on oath, obtain an order that B should promise, with or without sureties according to circumstances, to indemnify A in the event of the accident. If B refused to promise, the praetor by a first decree put A in possession, that is, gave him detention or custody of B’s house. If B still refused, the praetor by a second decree gave A bonitary ownership, which time would convert by usucapion into quiritary ownership. This remedy, imposing the necessity of indemnifying or surrendering the cause of damage, was an imitation of noxal actions, which compelled the father of a son or owner of a slave or of a beast that had injured a neighbour’s property either to make compensation or to surrender the author of the damage. (For a detailed account of this proceeding, see Roby, Bk. 4, ch 8.)
The proceeding damni infecti nomine by statute-process, from its similarity to the proceeding in aquae pluviae arcendae, may be inferred to have been a form of judicis postulatio.
§ 32. In English law there is a similar reference to an obsolete institution in the case of debtors to the sovereign. By 33 Hen. 8, c. 39, and 13 Eliz. c. 4, persons indebted to the Crown are to incur in certain cases the same liability as if they were bound in a Statute Staple, a form of solemn contract now disused.
§§ 33, 34. Gaius appears to have divided Fictions into two classes, those which made a reference from the formulary system to the older system of procedure, and those which made a reference from rights protected by the praetor to rights recognized by the civil law. The former class were not an extension of the law, but only preserved to a plaintiff the remedies which he otherwise would have lost by the change of procedure when statute-process was abolished. For instance, the fiction of Pignoris capio was employed to preserve unimpaired the rights of the revenue contractor and as a measure for assessing the damages to which he was entitled against a defaulter. We see by the statement made in § 33 about condictio, that a fiction was not required in all cases for the purpose of transferring an action from the old procedure to the new. But no information has come down to us as to the precise way in which this class of fiction was employed. Cf. Keller, § 18 n., 247 a, and § 25 n., 298.
The second class of fictions was an extension or reform of the law. protecting persons whose rights had previously not been recognized, or mitigating the rigours and liberalizing the narrow-mindedness of the ancient barbarous legislation: granting to the bonitary owner by inheritance or purchase the protection enjoyed by the quiritary owner; giving to the alien the redress provided for the citizen, and preserving to the creditor the remedies extinguished by the debtor’s diminution of status. In their task of ameliorating the law the praetors proceeded as unobtrusively as possible, by tacit rather than by open legislation, and rather by innovations in the adjective code, to use Bentham’s expression, or code of procedure, than in the substantive code. The introduction of the formulary system, giving them authority to create new actions, had virtually invested them with much legislative power. The new actions introduced by the praetor were called actiones utiles. Utiles actiones were either ficticiae or in factum, or constituted by a change of parties in the intentio and condemnatio of the formula, e. g. actiones adjecticiae qualitatis, §§ 69-74 a; cf. 3 § 219, comm. Let us examine these three different forms of praetorian action in respect of the mode of their operation. The praetor proceeded in two ways, (1) with or (2) without the use of fiction.
(1) When he granted a fictitious action, that is, one whose formula was framed in exactly the same way as that of a civil action, except that a fictio was added to it, the fiction furnished an exact measure of the extent to which the old law had been abandoned. The praetor might in this way suppress some element of the title to which the remedy at civil law was annexed; and make the same consequences follow as if this element had existed. The fiction would be the false assumption that the plaintiff’s case satisfied the abrogated condition. By ruling that the fictitious proposition should not be called in question, and that the defendant should not be allowed to demur to the plaintiff’s claim on the ground that the conditions required for maintaining it were unsatisfied, the praetor would virtually abrogate the old law, and substitute for it a new one. In the cases given by Gaius the conditions which are assumed relate to inheritance, usucapion, citizenship, capitis deminutio. They might conceivably relate to any other institution of civil law. In the Actio Pauliana protecting creditors against fraudulent alienations, the fiction was an assumption of non-delivery—the formula being something like this: Si quem hominem L. Titius in hoc anno fraudationis causa Numerio Negidio, qui eam fraudem non ignoravit, mancipio dedit, L. Titius Numerio Negidio mancipio non dedisset, tum si pareret eum hominem de quo agitur ex jure Quiritium L. Titii esse, si ea res arbitrio tuo non restituetur, &c., Lenel, p. 353. Restitutio in integrum of a minor might assume the form of a fictitious action which treated the rescinded act as unperformed (rescissa alienatione).
(2) A utilis actio, e g. the formula Rutiliana, § 35, sometimes depended on a variance in the parts of a formula, the true plaintiff or defendant first appearing in the condemnatio after another person had been named in the intentio. The formula is thus shaped when one of the parties to an action is a procurator, §§ 86, 87; but the later utilis actio on account of the cession or assignment of an obligation, when there was no mandatum agendi, may perhaps be fictitious. The actiones adjecticiae qualitatis were also instituted by means of this kind of variance in the parts of the formula.
(3) Without expressly referring in any way to jus civile, or avowedly introducing a new principle of substantive law, he created new rights by directing that the defendant should be condemned if the judex found that the facts asserted by the plaintiff in the intentio were made out. He did so in granting an actio in factum, one of his most potent instruments, that is, an actio whose intentio in factum concepta, of the form, Si paret . . . fecisse, factum esse, e. g. actio doli—Si paret doli mali Numerii Negidii factum esse, ut Aulus Agerius Numerio Negidio fundum de quo agitur mancipio daret, &c., or actio quasi-Serviana—Si paret inter Aulum Agerium et L. Titium convenisse, ut ea res, de qua agitur Aulo Agerio pignori hypothecaeve esset propter pecuniam debitam, &c.; for thus he tacitly introduced or converted a rule of equity or public opinion into a principle of substantive law, without any fiction or reference to previous rules. Utilis actio in factum, Dig. 11, 7, 7, 1, was an action that really had an affinity or analogy to some actio directa, but did not in its formula accentuate this affinity by means of any Fictio, e. g. actio Depositi, § 47.
Of the above forms of actio utilis the actio ficticia was probably the first to be established, and the actio in factum concepta the most recent.
§ 35. The purchaser of a bankrupt’s estate (bonorum emptor), unlike the purchaser at a sectio bonorum, or sale sub hasta of the confiscated goods of an enemy or a criminal, only had a title to the property under the praetor’s edict and not by civil law. Hence to protect his rights the praetor allowed him to sue by actio ficticia either by resort to the fiction that he was heres, or by a variance of the parts of the formula (convertit condemnationem in suam personam), and he was liable to corresponding actions. Cf. 3, §§ 77-81, comm.
The praetor Publius Rutilius is probably the P. Rutilius who was consul in 105 b. c. The formula which he introduced for the bonorum emptor was the same as that used in other cases where one person sued or was sued in the name of another, § 86.
The actio Serviana here mentioned was perhaps the action brought by the bonorum emptor when he had bought the estate of a deceased debtor and so was not the same action as the actio Serviana whereby a person letting his land on hire could recover the goods of a colonus which had been pledged as a security for the payment of rent, Inst. 4, 6, 7.
§ 36. The date of the important praetorian action called actio Publiciana, after the praetor who introduced it (Inst. 4, 6, 4), is uncertain. A Quintus Publicius is mentioned by Cicero, pro Cluentio, 45, as praetor in b. c. 66 or shortly before. The actio Publiciana (vindicatio utilis) was, as we have seen, 2 §§ 40-61, comm., used by a person holding the position of an owner whether as bona fide possessor or as having a bonitary title for the purpose of obtaining or recovering possession. But the action might also be available on account of its convenience to an owner ex jure Quiritium who wished to be relieved of the necessity of proving his title. The plaintiff had to prove that he acquired possession in consequence of some disposition (titulus, causa) such as emptio. His acquisition had to be accompanied like Usucapio by bona fides, i. e. a belief that the alienor had a power to aliene; but as the proof of bona fides is impossible, whereas the proof of mala fides is often easy, bona fides was presumed; i. e. the burden of the proof of mala fides was thrown on the defendant. If the plaintiff proved his intentio the defendant would still prevail if he could show that he was himself owner (exceptio dominii), or that he had obtained usucapion possession from some third party (a diverso auctore), or that having obtained usucapion possession from the same person as the plaintiff had acquired from (ab eodem auctore), his acquisition was prior in point of time. In these cases Publiciana wore the air of a duplex judicium. Savigny, Obligationsrecht, § 67. For an account of the actio Publiciana, when maintained by (1) a bonitary owner, (2) a bona fide possessor, see 2 §§ 40-61, comm.
The form of the actio Publiciana that we have considered proceeds on the supposition of the accomplishment of a non-accomplished usucapio. Some writers, misled by Dig. 44, 7, 35, pr., have imagined the existence of another form of Publiciana, which they call contraria Publiciana or Publiciana rescissoria, proceeding on the supposition that an accomplished usucapio had not been accomplished. But Savigny has shown, § 329, that this is erroneous: that when usucapion is rescinded by in integrum restitutio on account of Absence, the action whereby the plaintiff recovers his property may be, according to circumstances, either an ordinary Publiciana or an ordinary Vindicatio, Inst. 4, 6, 5: that the rescission of usucapio, in other words, does not give birth, as supposed, to any new form of action.
§ 38. By a positive rule, of which we are unable to give the rationale [1 §§ 159-164, comm.], the change of status produced by coemptio and adrogatio extinguished the debts of the wife or adrogatus, and the husband or adrogator acquired by manus and patria potestas their rights without their liabilities. To meet this the praetor gave the creditor an actio rescissoria which was ficticia: Ait praetor: qui quaeve, posteaquam quid cum his actum contractumve sit, capite deminuti deminutaeve esse dicentur, in eos easve quasi id factum non sit judicium dabo, Dig. 4, 5, 2. If the action was not defended by the husband or adrogator, the praetor gave the creditor missio in possessionem and power of sale against all the property of the wife or adrogatus, 3 § 84.
§ 39. Partes autem formularum hae sunt: demonstratio intentio adiudicatio condemnatio.
§ 40. Demonstratio | est ea pars formulae quae—, ut demon|stretur res de qua agitur: uelut haec pars formulae qvod a. agerivs n. negidio hominem vendidit; item haec qvod a. agerivs 〈apvd〉 n. negidivm hominem deposvit.
§ 41. Intentio est ea pars formulae, qua actor desiderium suum concludit: uelut haec pars formulae si paret n. negidivm a. agerio sestertivm x milia dare oportere; item haec qvidqvid paret n. negidivm a. agerio dare facere 〈oportere〉; item haec si paret hominem ex ivre qviritivm a. agerii esse.
§ 42. Adiudicatio est ea pars formulae, qua permittitur iudici rem alicui ex litigatoribus adiudicare: uelut si inter coheredes heredes familiae erciscundae agatur, aut inter socios communi diuidundo, aut inter uicinos finium regundorum. nam illic ita est qvantvm adivdicari oportet, ivdex titio adivdicato.
§ 43. Condemnatio est ea pars formulae, qua iudici condemnandi absoluendiue potestas permittitur: uelut haec pars formulae ivdex n. negidivm a. agerio sestertivm x milia condemna. si non paret, absolve; item haec ivdex n. negidivm a. agerio dvmtaxat 〈x milia〉 condemna. si non paret, absolvito; item haec ivdex n. negidivm a. agerio condemnato et reliqua, ut non adiciatur dvmtaxat 〈x milia〉.
§ 44. Non tamen istae omnes partes simul inueniuntur, sed quaedam inueniuntur, quaedam non inueniuntur. certe intentio aliquando sola inuenitur, sicut in praeiudicialibus formulis, qualis est qua quaeritur, aliquis libertus sit uel quanta dos sit et aliae conplures. demonstratio autem et adiudicatio et condemnatio numquam solae inueniuntur. nihil enim omnino 〈demonstratio〉 sine intentione uel condemnatione ualet; item condemnatio sine demonstratione uel intentione, uel adiudica〈tio sine demonstratione uel inten〉tione nullas uires habet, 〈et〉 ob id numquam solae inueniuntur.
§ 39. The formula is composed of the Demonstratio, the Intentio, the Adjudicatio, the Condemnatio.
§ 40. The principal function of the part of the formula called Demonstratio is to indicate the subject-matter of dispute, [the cause of action, the title of the plaintiff’s right, the origin of his claim], as in the following example: ‘Whereas Aulus Agerius sold a slave to Numerius Negidius,’ or, ‘Whereas Aulus Agerius deposited a slave in the hands of Numerius Negidius.’
§ 41. The Intentio is that part of the formula which expresses the claim of the plaintiff, thus: ‘If it be proved that Numerius Negidius ought to convey ten thousand sesterces to Aulus Agerius;’ or thus: ‘Whatever it be proved that Numerius Negidius ought to convey or render to Aulus Agerius;’ or thus: ‘If it be proved that the slave in question belongs to Aulus Agerius by the law of the Quirites.’
§ 42. The Adjudicatio is that part of the formula which empowers the judex to transfer the ownership of a thing to one of the litigants, and occurs in the actions for partitioning an inheritance between co-heirs, for dividing common property between co-partners, and for determining boundaries between neighbouring landholders. In these the praetor says: ‘The portion of the property that ought to be transferred to Titius, do thou, judex, by thy award transfer to him.’
§ 43. The Condemnatio is that part of the formula which empowers the judex to condemn or absolve the defendant, thus: ‘Do thou, judex, condemn Numerius Negidius to pay to Aulus Agerius ten thousand sesterces; if it be not proved, declare him to be absolved;’ or thus: ‘Do thou, judex, condemn Numerius Negidius to pay to Aulus Agerius a sum not exceeding ten thousand sesterces; if the case be not proved, declare him to be absolved;’ or thus: ‘Do thou, judex, condemn Numerius Negidius to pay to Aulus Agerius,’ et cetera, without inserting any maximum limit as, e. g., of not more than ten thousand sesterces.
§ 44. These parts are not concurrent, but where some are present others are absent. Sometimes the Intentio is found alone, as in the prejudicial formula to decide whether a man is a freedman, or to ascertain the amount of a dower, or to settle other preliminary inquiries. But the Demonstratio, Adjudicatio. and Condemnatio are never found alone, for the Demonstratio is inoperative without an Intentio and Condemnatio, and the Condemnatio and Adjudicatio are inoperative without a Demonstratio or an Intentio.
§ 39. Besides the four parts mentioned by Gaius the formula always contained a nomination of a judex, and sometimes an exceptio, praescriptio, or arbitrium, accessory parts which will be presently explained.
§ 40. The demonstratio seems not to have occurred in real actions nor in personal actions in factum, but in personal actions in jus, whether founded on contract or on delict, where the intentio was incerta res—quidquid paret dare facere oportere—but not where the intentio was certa, as in the condictio certi. It was introduced in order to form a basis for aestimatio, whenever an intentio incerta left the quantum of the condemnatio to be determined by the judex. In actio in rem Publiciana, § 36, and Condictio certi, § 55, the causa is introduced, not in Demonstratio, but as a part of the Intentio.
If the contract had a technical name (e. g. depositum, venditio) the demonstratio contained the name (deposuit, vendidit); if the contract was nameless, it was described in the praescriptio, which was a substitute for the demonstratio, by a circumlocution, and this kind of process was called agere or at a later time actio praescriptis verbis, 3 §§ 90, 91, comm. That a demonstratio was found in actions ex maleficio appears from Gaius, below, § 60, and from Paulus, as quoted in Collatio, 2, 6. Sicut formula posita est: Quod Aulo Agerio a Numerio Negidio pugno mala percussa est: Illud non cogitur dicere, dextra an sinistra, nec qua manu percussa sit. Item si dicat infamatum se esse, debet adjicere quemadmodum infamatus sit. Sic enim et formula concepta est: Quod Numerius Negidius sibilum inmisit Aulo Agcrio infamandi causa. ‘As the formula is worded: Whereas Aulus Agerius was struck on the cheek by the fist: the plaintiff is not compelled to declare whether he was struck on the right or left cheek, or whether with the right or left hand. And if he sue for defamation, he must allege the means, for so the formula is framed: Whereas Numerius Negidius hissed Aulus Agerius with the purpose of defamation.’
The absence of a demonstratio in the formula of condictio certi may be inferred from the example given by Gaius, § 86, and from the assertion of Cicero, pro Roscio Comoedo, 4, that it did not appear whether Fannius, who sued Roscius by condictio certi, founded his claim on mutui datio, expensilatio, or stipulatio. He could hardly have asserted this, if the title on which Fannius sued had been expressed in a demonstratio. On the other hand, we have a praescriptio corresponding to a demonstratio in the actio ex stipulatu for an uncertain amount, §§ 136, 137. It is obvious that if a man sues for an indeterminate sum of money he ought to give the defendant some further information of the cause of action; but if he sues for a determinate sum or a definite thing, the defendant can scarcely be ignorant of the cause of action on which the plaintiff relies.
§ 42. The adjudicatio was only found in the three actions familiae erciscundae, communi dividundo, and finium regundorum. It was not a declaration of existing rights of property, but a partition of property by a judex between the litigants. Adjudicatione dominium nanciscimur . . . nam si judex uni ex heredibus aut sociis aut vicinis rem aliquam adjudicaverit, statim illi adquiritur sive mancipi sive nec mancipi sit, Ulpian, 19, 16. ‘Adjudication is a means of acquiring dominion, for the heir, partner, or neighbouring landowner, to whom a thing is adjudicated by the judex, forthwith acquires ownership therein, whether it is mancipable or not mancipable.’ In quibus tribus judiciis permittitur judici, rem alicui ex litigatoribus ex bono et aequo adjudicare, et, si unius pars praegravare videbitur, eum invicem certa pecunia alteri condemnare, Inst. 4, 6, 20. ‘In these three actions the judge has the power to assign a thing in accordance with fair-dealing and equity to one of the litigants, and, if this one obtains more than his share, to condemn him to make pecuniary compensation to the other.’
§ 43. Taxatio [signified by the word ‘dumtaxat’] was a limitation to the condemnatio, §§ 51, 52; cf. 3 § 224. Besides the kind noticed here by Gaius, there were several others. If a paterfamilias was sued for the debt of a person in his power whom he had authorized to trade, the condemnation was limited to the amount of the peculium (quatenus in peculio sit); if the slave or son had traded without authority, it was limited to the amount of profit the father or master had thereby received (quatenus in rem ejus versum sit), §§ 72, 73; if the heir of a wrongdoer was sued, it was limited to the amount that he gained from the wrong or fraud by his succession (dumtaxat in id quod ad eum pervenit quanto locupletior factus est).
Again, in an analogous way, some debtors enjoyed a privilege that is called Beneficium competentiae: the privilege of not being condemned to pay the whole amount of their debt but only such an amount as will leave them the means of subsistence (condemnatio in tantum quantum facere potest. Cf. Inst. 4, 6, 37, 38). A soldier sued by any creditors; a debtor who has made cessio bonorum, sued by his original creditors in respect of after-acquired property, Inst. 4, 6, 40; cf. 3 §§ 77-81, comm.; a person sued on becoming a paterfamilias, but without inheriting much property, by a creditor in an obligation other than a delictal one, incurred when he was a filiusfamilias, Dig. 14, 5, 2-7; an ascendant sued by a descendant, Inst. 4, 6, 38; a husband sued by a wife or a wife by a husband before or after divorce for a debt incurred during marriage; a father-in-law sued by a son-in-law for a promised dower; a donor sued by a donee; a partner sued by a partner, Inst. 4, 6, 38; were only liable to be condemned in such a sum as would leave them the necessaries of life. The privilege was enforced by Exceptio, Dig, 44, 1, 22. It was forfeited by dolus and did not apply to liabilities arising from delict. If such a privileged debtor was condemned in the whole amount of his fortune he could claim to have a deduction for his means of subsistence made in the levy of execution.
The obligation of the privileged debtor, however, was not extinguished until his creditor had received full satisfaction, and any after-acquired property of the debtor was liable to the claims of the creditor. Accordingly, at the period when Res judicata operated either ipso jure or ope exceptionis to extinguish all rights of action arising from the same ground, 3 § 180, it was necessary, in order to preserve the creditor’s right of subsequent action for the residue, that the judge, as a condition of allowing the Beneficium competentiae, should compel the debtor to enter into a stipulation on which a subsequent suit could be grounded. At a later period, when Res judicata had lost its power of necessary Novation, it was no longer requisite to exact this cautio from the debtor before he was allowed to enjoy the Beneficium competentiae. Vangerow, § 174.
§ 44. A praejudicium is mentioned, 3 § 123, to try whether a creditor had openly declared to the sureties the amount of the debt and number of sureties; on which facts would depend the several liabilities of each surety.
When Manus had fallen into desuetude, Dos, the contribution by or on behalf of the wife to the expenses of matrimony, became during the subsistence of the marriage tie the property of the husband, 2 § 63, but might have to be restored at its termination. The law, however, by a partial extinction of the dower, allowed him to retain whatever necessary outlay he had made for its maintenance: Impensae necessariae dotem ipso jure minuunt, Dig. 23, 2, 61. Cf. § 102, comm. If, now, we assume with Ihering that there was a period when every action was required to have an intentio certa, § 50, we can understand the necessity of a praejudicium to ascertain quanta dos sit. For when the divorced wife sued for restitution of her dower, having no means of knowing the amount of her husband’s outlay upon it or what portion of his outlay was necessary to its maintenance, she would certainly have incurred the penalties of plus petitio, § 53, if she was not allowed to ascertain by a preliminary issue the amount of the dower after deduction of the necessary outlay. See §§ 115, 137, comm.
So when by the lex Falcidia all legacies were proportionally abated until a fourth remained to the heir, it was necessary, in order to enable the legatee to avoid plus petitio, to allow him to ascertain the amount of the inheritance by a preliminary inquiry: Cum dicitur lex Falcidia locum habere, arbiter dari solet ad ineundam quantitatem bonorum, Dig. 35, 3, 1, 6. ‘When Falcidia is alleged to be applicable, an arbiter is appointed to ascertain the amount of the inheritance.’
Could a formula consist solely of a Demonstratio and a Condemnatio? Yes, if Savigny is right in supposing, § 312, that the Praetor sometimes granted a formula of the following shape:
Quod Aulus Agerius juravit, Numerium Negidium fundum Cornelianum ipsi dare oportere, quanti is fundus est, eum condemna. ‘Whereas the plaintiff has sworn that the defendant owes him such and such a thing, do thou, judex, condemn the defendant to pay him its value.’
To explain this we must notice a peculiar use of the oath (jusjurandum) in Roman litigation.
The Teutonic tribes, including our ancestors, allowed a defendant to purge himself by his own oath supported by the oath of a certain number of his neighbours; of which institution we have a vestige in the Wager of law, which was recently an incident of the action of Detinue, in which the defendant might clear himself by his own oath and that of eleven compurgators. With such principles of evidence it is not surprising that in the German forests the struggle between litigants was not, who should escape the burden of proof but, who should enjoy the privilege of proof. The Roman method was not so liable to abuse. Either litigant might tender (deferre, delatio) an oath to his adversary, i. e. offer to be concluded by his adversary’s oath, on an issue either of fact or of law (as to the existence of obligation, ownership, succession, &c.). The oath was then equivalent to a judgment in favour of the person by whom it was sworn, Inst. 4, 13, 4. If a litigant was prepared to take an oath his adversary might release him from actually swearing (dare, praestare jusjurandum); but this release (remittere, remissio) was equivalent to an actual oath. Instead of taking a tendered oath, the adversary might make a counter-tender (referre, relatio), i. e. submit the issue to the oath of the original tenderer. To decline either to swear or to make a counter-tender was equivalent to a confession of the party who declined, or to an oath of the party who tendered. From this necessity imposed on the party to whom it was tendered, the oath was called jusjurandum necessarium, Dig. 12, 2, 34, 6. If now on a tender or counter-tender by a defendant a plaintiff swore to the justice of his claim, the assessment of damages (rei aestimatio) would still remain as a question for the judex, and the praetor might, according to Savigny, give him a formula consisting, as above, of a Demonstratio and a Condemnatio. (But see Lenel, § 54.)
Similarly in case of a Confessio in jure, where anything but pecunia certa was admitted to be due, a litis aestimatio would be necessary, of which the formula as constructed by Savigny would be: Quod Numerius Negidius in jure confessus est, fundum illum Aulo Agerio se dare oportere, Quanti is fundus est, judex, Numerium Negidium Aulo Agerio condemna: si non paret absolve. Savigny, § 303; Keller, § 63.
§ 45. Sed eas quidem formulas, in quibus de iure quaeritur, in ius conceptas uocamus, quales sunt, quibus intendimus nostrvm esse aliqvid ex ivre quiritivm autnobis dari oportere aut pro fvre damnvm 〈decidi oportere; sunt et aliae, in〉 quibus iuris ciuilis intentio est.
§ 46. Ceteras uero in factum conceptas uocamus, id est in quibus nulla talis intentio concepta est, 〈sed〉 initio formulae nominato eo quod factum est adiciuntur ea uerba, per quae iudici damnandi absoluendiue potestas datur: qualis est formula, qua utitur patronus contra libertum, qui eum contra edictum praetoris in ius uocauit; nam in ea ita est recvperatores svnto. si paret illvm patronvm ab illo liberto contra edictvm illivs praetoris in ivs vocatvm esse, recvperatores illvm libertvm illi patrono sestertivm x milia condemnate. si non paret, absolvite. ceterae quoque formulae, quae sub titulo de in ivs vocando propositae sunt, in factum conceptae sunt, uelut aduersus eum, qui in ius uocatus neque uenerit neque uindicem dederit; item contra eum, qui ui exemerit eum qui in ius uocatur; et denique innumerabiles eius modi aliae formulae in albo proponuntur.
§ 47. Sed ex quibusdam causis praetor et in ius et in factum conceptas formulas proponit, ueluti depositi et commodati. illa enim formula, quae ita concepta est ivdex esto. qvod a. agerivs apvd n. negidivm mensam argenteam deposvit, qva de re agitvr, qvidqvid ob eam rem n. negidivm a. agerio dare facere oportet ex fide bona, eivs ivdex n. negidivm a. agerio condemnato, nisi restitvat. si non paret, absolvito, in ius concepta est. at illa formula, quae ita concepta est ivdex esto. si paret a. agerivm apvd n. negidivm mensam argenteam deposvisse eamqve dolo malo n. negidii a. agerio redditam non esse, qvanti ea res erit, tantam pecvniam ivdex n. negidivm a. agerio condemnato. si non paret, absolvito, in factum concepta est. similes etiam commodati formulae sunt.
§ 48. Omnium autem formularum, quae condemnationem habent, ad pecuniariam aestimationem condemnatio concepta est. itaque et si corpus aliquod petamus, ueluti fundum hominem uestem 〈aurum〉 argentum, iudex non ipsam rem condemnat eum cum quo actum est, sicut olim fieri solebat, 〈sed〉 aestimata re pecuniam eum condemnat.
§ 49 Condemnatio autem uel certae pecuniae in formula proponitur uel incertae.
§ 50. Certae pecuniae uelut in ea formula, qua certam pecuniam petimus; nam illic ima parte formulae ita est ivdex n. negidivm a. agerio sestertivm x milia condemna. si non paret, absolve.
§ 51. Incertae uero condemnatio pecuniae duplicem significationem habet. est enim una cum aliqua praefinitione, quae uulgo dicitur cum taxatione, uelut si incertum aliquid petamus; nam illic ima parte formulae ita est ivdex n. negidivm a. agerio dvmtaxat sestertivm x milia condemna. si non paret, absolve. uel incerta est et infinita, uelut si rem aliquam a possidente nostram esse petamus, id est si in rem agamus uel ad exhibendum; nam illic ita est qvanti ea res erit, tantam pecvniam, ivdex, n. negidivm a. agerio condemna. si non paret, absolvito. quid ergo est? iudex si condemnet, certam pecuniam condemnare debet, etsi certa pecunia in condemnatione posita non sit.
§ 52. Debet autem iudex attendere, ut cum certae pecuniae condemnatio posita sit, neque maioris neque minoris summa posita condemnet, alioquin litem suam facit. item si taxatio posita sit, ne pluris condemnet quam taxatum sit; alias enim similiter litem suam facit. minoris autem damnare ei permissum est. at si etiam —|—|NA qui formulam accipit, intendere debet, nec amplius|—NA certa condemnatione constringi—|—|—|NAusque uelit.
§ 45. Those formulae are said to be framed in jus, which raise a question of right; when, for instance, we claim in the intentio of the formula that the thing is ours by the law of the Quirites, or claim in it that the defendant is bound to convey something to us or to make composition to us as a thief; for in such formulae the intentio is one of civil law.
§ 46. But other formulae, on the contrary, are said to be in factum when they are not drawn up with an intentio of the above kind; but, after proposing a question of fact in the intentio, proceed at once to the Condemnatio and Absolutio; as in a formula used by a patron when suing his freedman for summoning him before the magistrate in contravention of the edict. The formula then runs thus: ‘Let M N be recuperators. If it be proved that such and such a patron was summoned to appear by such and such a freedman against the edict of such and such a praetor, do you, recuperators, condemn the said freedman to pay to the said patron ten thousand sesterces; if it be not proved, declare him to be absolved.’ The other formulae, which are set out in the title of the edict about summoning before the magistrate, raise questions of fact, as the formula in an action against a defendant who on service of summons neither appears nor finds a vindex, or against a person who makes a violent rescue of a person summoned to appear; and many other formulae of this kind are set out in the praetor’s album.
§ 47. But some actions may be instituted by formulae either of law or of fact, as for instance the actions of Deposit and Loan for use. Thus the following formula is one of law: ‘Let C D be judex. Whereas Aulus Agerius deposited a silver table with Numerius Negidius, which is the ground of action, whatsoever it be proved that Numerius Negidius is on that account bound by good faith to convey or render to Aulus Agerius, do thou, judex, condemn Numerius Negidius to pay its value, unless he make restitution; if it be not proved, declare him to be absolved.’ Whereas a formula thus framed: ‘Let C D be judex. If it be proved that Aulus Agerius deposited a silver table in the hands of Numerius Negidius, and that by the fraud of Numerius Negidius it has not been restored to Aulus Agerius, do thou, judex, condemn Numerius Negidius to pay Aulus Agerius whatever shall be the value of the table; if it be not proved, declare him to be absolved:’ is a formula of fact. And there is a similar alternative in the case of Loan for use.
§ 48. Whenever a formula contains a condemnation clause, such clause is so framed as to express value in money. So even when we claim a corporeal thing, like land, a slave, a garment, gold or silver, the judex condemns the defendant to deliver not the thing itself, as in the older system of procedure, but its value in money.
§ 49. The formula either sets out a certain sum in the Condemnatio or is for an uncertain sum.
§ 50. It is for a certain sum in that formula by which we claim in the intentio that a person is bound to pay us a liquidated debt, for then this final part of the formula runs as follows: ‘Do thou, judex, condemn Numerius Negidius to pay Aulus Agerius (say, e. g.) ten thousand sesterces; if it be not proved, absolve him.’
§ 51. A condemnation in an uncertain sum of money may be one of two kinds. In the first kind it is preceded by some limitation (commonly known as taxatio). This kind may occur, for example, when we sue for an uncertain amount, in which case the concluding part of the formula runs thus: ‘Do thou, judex, condemn Numerius Negidius to pay Aulus Agerius not more than ten thousand sesterces; if it be not proved, absolve him;’ or it is named without a limitation, as when we demand our property from the possessor in a real action, or demand the production of a person or thing in a personal action, where the conclusion runs as follows: ‘Do thou, judex, condemn Numerius Negidius to pay Aulus Agerius whatever shall be the value; if it be not proved, absolve him.’ But whatever the claim, the judex must condemn the defendant to pay a definite sum, even though no definite sum is named in the condemnatio.
§ 52. When a certain sum is laid in the condemnatio, he must be careful not to condemn the defendant in a greater or lesser sum, else he makes the cause his own: and if there is a limitation he must be careful not to exceed the maximum, else he is similarly liable; but he may condemn him in less than the maximum.
§ 45. Cf. § 34, comm. In an action with a formula in factum concepta, the Intentio, Si paret fecisse, ‘If it appear that the defendant has done this or that’—‘If the defendant’s act place him in a certain class,’ corresponds to the minor premiss of a syllogism of which the conclusion is: ‘Then this defendant is under such and such an obligation to this plaintiff,’ or ‘This defendant is condemnable to perform such and such a service to this plaintiff.’ The major premiss will be: ‘All persons who have done such and such an act,’ or, ‘who belong to such and such a class, are under such and such an obligation,’ or ‘are compellable to render such and such a service to such and such a plaintiff.’ This major premiss is withdrawn from discussion, is not permitted to be disputed; and the issue in such an action can only relate to the minor premiss; in other words, is always an issue of fact.
In an actio with a formula in jus concepta, the intentio, Si paret oportere, ‘If it appear that the defendant is under such and such an obligation,’ corresponds to the conclusion of a syllogism of which the minor premiss is: ‘The defendant belongs to such and such a class:’ and the major: ‘All persons belonging to such and such a class are under such and such an obligation.’ The major premiss may be an alleged rule either of law or of equity, a proposition either of civil law or of praetorian law; and in neither case is it withdrawn from discussion. The issue, that is to say, in an action with a formula in jus concepta may either relate to the minor or to the major premiss: may be either an issue of fact or an issue of law.
The following passage of Cicero speaks of actions whose formula was in jus concepta with the additional terms, ex fide bona or the like; and thus making it an actio bonae fidei. Privata enim judicia maximarum quidem rerum in juris consultorum mihi videntur esse prudentia. . . . In omnibus igitur iis judiciis in quibus ex fide bona est additum; ubi vero etiam ut inter bonos bene agier; in primisque in arbitrio rei uxoriae, in quo est, quod aequius melius, parati esse debent. Illi enim dolum malum, illi fidem bonam, illi aequum bonum, illi quid socium socio, quid eum qui aliena negotia curasset ei cujus ea negotia fuissent; quid eum qui mandasset eumve cui mandatum esset alterum alteri praestare oporteret, quid virum uxori, quid uxorem viro, tradiderunt, Topica, 17. ‘Private suits of the highest importance turn on the doctrines of the jurist. . . . In all the actions, therefore, where the judge is instructed to look to the requirements of good faith, to the practice of honest men, or, as in the suit of a wife against her husband, to what is fair and equitable, the jurist should be ready to speak. For he is the authority on what constitutes fraud or good faith, what is good and equal, what are the mutual duties of partners, of principal and agent, whether authorized or unauthorized, or of husband and wife in respect of delivery of property.’
Actions in personam with formulae in jus conceptae may be either stricti juris or bonae fidei. The actio stricti juris is generally called condictio, § 18. (As to the proper use of the term condictio cf. Sohm, § 80, n. 6.) The gist (gîte) of the civil action of Condictio, i. e. the circumstance whereon it lay, the title or ground of action, was the increase of the defendant’s fortune or patrimony by the reduction of the plaintiff’s patrimony without any consideration or equivalent gain to the plaintiff. This disturbance the law restored. The simplest, and probably the earliest, instance of the principle was mutui datio, 3 § 90. Here the defendant’s wealth is increased and that of the plaintiff diminished by a voluntary act of the plaintiff; but the principle equally covers cases where the relation is not knowingly and intentionally initiated by the plaintiff, e. g. payment by mistake (solutio indebiti). Many other cases of transfer of property come under the same principle, imposing on the transferee the obligation to re-transfer on account of failure of consideration (causa data, causa non secuta). From mutui datio, or actual loan, the Condiction was, as we have seen, §§ 18-20, applied or extended to Expensilatio and Stipulatio, one if not both of which, probably, were imaginary loans, that is, agreements solemnized and fortified by the fiction of a loan. We are expressly informed that this was the case with Expensilatio, 2 § 129, and from one etymology of stipulation which has been suggested (stips = pecunia) and the supposed analogy of Nexum (assuming this to have been a fictitious weighing out of bars of bronze), some writers conjecture the same of Stipulation.
The introduction of actions stricti juris is probably of more ancient date than the introduction of actions based on bona fides; the necessity, that is, of applying the power of the State to enforce the class of obligations pursued by Condictio was earlier felt than the necessity of compelling men by law to perform their so-called obligations ex fide bona. From the antithesis of strictum jus and bona fides it might be imagined that trust, confidence, credit, reliance on good faith, were entirely foreign to civil obligations, and were only ingredients in equitable obligations. This is the reverse of the truth. Greater confidence (fides) is involved in mutui datio, greater risk is incurred by the obligee, who starts by alienating his property and making it the property of the obligor, who denudes himself, that is, of the remedy of vindicatio, than in any other of the real contracts, most of which leave the promisee, even before the invention of personal actions, armed, if need be, with the legal remedy of vindicatio. Other real contracts we can imagine left to the protection of the moral code, to the forum of conscience, to the sanction of public opinion, at a time when the immense confidence implied in a loan for consumption made the enforcement of this contract by strict legal process a matter of practical necessity. (Cf. on this subject Muirhead, Roman Law, §§ 8, 12.)
When the short, sharp, and decisive remedy of a civil action had once been invented for mutui datio, the ingenuity of contracting parties and jurists would soon extend the remedy to other relations by means of a fiction of mutui datio. Expensilation, then, and Stipulation may be regarded as artifices for transferring agreements, originally perhaps, from the ethical code to the legal code; but certainly, in later times, from the laxer equitable code to the more rigorous civil code. A great part, however, of human dealings refuses to be governed by formal conditions, and pre-arranged, pre-capitulated stipulations. Hence alongside of stipulatio and expensilatio existed Real and Consensual contracts; alongside of Condictio existed Judicis arbitrive postulatio; alongside of formulae stricti juris existed formulae bonae fidei.
The general difference between actions stricti juris and actions bonae fidei consisted in the greater latitude of discretion allowed to the judge in the latter. The principal specific points of difference were the following:
(a) Actions stricti juris are based on unilateral contracts, which only ground an action for one of the parties: actions bonae fidei are based on bilateral contracts, on which both parties can bring actio directa; or on semi-bilateral contracts, on which one party can bring actio directa, and the other actio contraria. So one-sided were condictions or actions stricti juris that before the time of Marcus Aurelius a set-off or counterclaim of the defendant (compensatio) could not be pleaded except as a ground of absolution in the form of Exceptio doli. Inst. 4, 6, 30.
(b) Actions stricti juris are governed by a literal interpretation of the words of a disposition: in actions bonae fidei the judge inquires what was the true intention of the parties; he attends not only to express but also to implied terms of an agreement, Dig. 3, 5, 6, and, to ascertain these, takes notice of local usages, Dig. 21, 1, 31, 20. As we distinguish between the manifestation of the will or overt act of a delinquent and his intention, so bona fides distinguishes between the exact words used by contractors and their intentions. Strictum jus adheres more rigidly, at least in early times, to a grammatical or literal interpretation of a disposition, and assumes that words exactly correspond to intentions. It is then called summum jus: e. g. Verbis et literis et summo jure contenditur, Cicero.
(c) The ground to support any given condictio or actio stricti juris is precisely defined: whereas an actio bonae fidei, e. g. an actio empti or venditi, can be brought not only to enforce the principal contract—emptio venditio—but also to enforce any accessory agreements made at the same time (ex continenti) as the principal contract (pacta adjecta) or to obtain relief in respect of any circumstances of fraud (dolus) or intimidation (metus) In the later law, however, accessory informal agreements coalesced into a single contract when annexed to a loan (mutuum): Omnia quae inseri stipulationibus possunt, eadem possunt etiam numerationi pecuniae et ideo et conditiones, Dig. 12, 1, 7. In the case of a loan of money, however, interest could not be recovered on a contemporaneous, informal agreement, because the only action a loan of money could support was condictio certae pecuniae: on a loan of any other quantitas but money, such as oil or wheat, interest could be recovered, because though the intentio of the formula was certa, the value of such things was uncertain (condemnatio incerta); but this exception to the rule that interest could not be due on a mutuum seems only to have been made, in late times, a special stipulation on account of interest having perhaps been required in all cases by classical law, Cod. 4, 32, 23. Cf. Dig. 50, 16, 121 Usura pecuniae, quam percipimus, in fructu non est, quia non ex ipso corpore, sed ex alia causa est, id est nova obligatione. Savigny, § 268.
(d) The defence in an actio stricti juris could only allege matters which ipso jure extinguished or annihilated a claim (e. g. solutio, acceptilatio, novatio), or, if they founded an indirect answer of the defendant, had been disclosed to the praetor in the preliminary pleadings (in jure) in the form of an exceptio: whereas the judex or arbiter who tried an actio bonae fidei could consider any pleas in exception even when they were averred for the first time in the course of the trial: cum doli exceptio insit de dote actioni ut in ceteris bonae fidei judiciis, Dig. 24, 3, 21.
(e) In respect of the accessions (omnis causa) in which a defendant was condemned in damages, namely fructus and usurae, there was a difference between actiones stricti juris and bonae fidei: in the former the defendant was only liable to pay these from the date of Litis contestatio; whereas in the latter he was liable from the date of Mora, 2 § 280.
(f) As all condemnations under the formulary system were in pecuniary damages it was necessary in the event of a condemnation that the thing in dispute should be valued in money. In actions stricti juris the moment fixed for the valuation (aestimatio) was Litis contestatio: in actions bonae fidei the date of valuation was the date of Condemnatio: In hac actione sicut in ceteris bonae fidei judiciis . . . rei judicandae tempus, quanti res sit, observatur, quamvis in stricti (juris judiciis) litis contestatae tempus spectetur, Dig. 13, 6, 3, 2. This is so uncontroverted that in another passage, which seems to fix the moment of condemnatio as the moment of aestimatio in a stricti juris action, Dig. 13, 3, 3, the opinion of the jurist Servius is perhaps inadvertently adopted by the compilers: we see elsewhere that the jurists differed on this subject, cf. Dig. 12, 1, 22. Both in stricti juris and bonae fidei actions, if a day was fixed for the performance of a contract, this day was the date of aestimatio; and if a debtor was guilty of Mora, the creditor had his election between Lis contestata and Res judicata respectively and the date of Mora. In an action on Delict the date of Valuation was none of these but the date of the Delict, i. e. the date of the inception of the obligation. Savigny, System, § 275.
(g) Another difference related to jusjurandum in litem, i. e. the plaintiff’s sworn declaration of the value of the thing in dispute. When a defendant contumaciously disobeys a judge’s order in a certain class of actions where judgment is preceded by an order (arbitrium) of the judex, namely actiones Arbitrariae, including Real actions and Personal actions brought to obtain Restitutio or Exhibitio; or when by dolus or culpa lata the defendant has disabled himself from obeying the judge’s order; then the oath of the plaintiff as to the value of the subject of litigation fixes the amount of damages (aestimatio) in which the defendant will be condemned subject to the approval of the judex, who would generally allow exemplary damages. Cf. Sohm, § 53. The same rule was also applicable in actions bonae fidei. Examples of such actions are the actions Depositi, Commodati, Locati, Dotis, Tutelae, Doli, Metus, and the interdict Unde vi. In condictions or actions stricti juris it was only admissible under special circumstances; and in delictal actions when the subject of litigation had ceased to exist by the fault of the defendant, e. g. in the actio legis Aquiliae, and litis aestimatio would otherwise be impossible to the judex, he might use the plaintiff’s oath as a subsidiary evidence for ascertaining what was the selling value of the thing that had been destroyed or what therein was the plaintiff’s exceptional interest.
(h) If performance of a contract was due at a certain place, a bonae fidei action could be brought to recover damages for non-performance at any other forum as well as at the forum of the specified place, whereas a plaintiff who brought an action stricti juris at any other forum than the forum of the place where the contract was to be executed would have incurred the penalties of Plus petitio; and to avoid this was obliged to bring his action in the form of actio Arbitraria, § 53, comm. Inst. 4, 6, 33.
The division of actions into stricti juris and bonae fidei, properly speaking, only embraces actions founded on contract and quasicontract with a formula in jus concepta: that is to say, Real actions, actions with a formula in factum concepta, actions on delict, praetoria cognitio (cognizance by the praetor without reference to a judex) were neither stricti juris nor ex bona fide. It is probable, however, that delictal actions (e. g. the actions furti nec-manifesti and legis Aquiliae) were governed by the rules of actions stricti juris; while actiones in rem arbitrariae, and actiones in factum, and cognitio extraordinaria were governed by the rules of bonae fidei actiones. Vangerow, § 139. Cf. Inst. 4, 6, 28-30.
Many preliminary questions of law were undoubtedly decided at the initial stage of an action in jure, that is, at the appearance before the tribunal or curule chair of the praetor. At this appearance the parties were attended by counsel (haerere in jure atque praetorum tribunalibus [advocatos] De Oratore, 1, 38); and here, though the praetor would not settle a dispute about facts, many demurrers or simple issues of law or equity might be decided, and the controversy might be terminated, if it could not be brought under any rule of jus civile or of the edict, or if there was a confessio in jure, without ever reaching the stage of reference to a judex. But it was an important constitutional principle that the issue itself, which might involve questions both of law and fact, should be decided by an independent private person as judex, and not by the magistrate. This principle, weakened by the growth of extraordinaria cognitio, was abandoned under Diocletian and his successors, when, as we have seen, all private causes came to be decided either by the magistrate himself or by an official to whom he delegated his authority (judex pedaneus).
§ 46. According to the Institutes, a man might not summon his patron or parent to appear in an action without the permission of the praetor, under a penalty of fifty solidi, Inst. 4, 16, 3. A solidus or aureus was a hundred sesterces, so that we must either, with Savigny, for ten thousand read five thousand sesterces in the text of Gaius, or suppose that Justinian reduced the penalty to half its original amount.
In the formulary system an appearance of the defendant before the praetor (in jure) was indispensable as the first stage of an action. In English law, after service of summons or proof that all proper means for the service of summons have been used in vain, the court will grant leave to the plaintiff to enter substituted service for the defendant. But in Roman law an original appearance of the defendant was necessary. On service of a summons (in jus vocatio) he was bound either to obey at once and accompany the plaintiff into court, or to send a responsible representative (vindex, § 46) in his stead, or to find security, called cautio judicio sisti (to be thus interpreted: cautio sisti in jure ad judicium ordinandum), for his appearance in jure on a future day. If he took none of these steps he was liable to an actio in factum, and he might be apprehended and taken by force (duci in jus, Dig. 2, 8, 5, 1); and any person who made a violent rescue was liable to be condemned by actio in factum to pay the amount of the plaintiff’s claim, quanti ea res est ab actore aestimata, Dig. 2, 7, 5, 1. At the first appearance in court, after the plaintiff had stated which of the actions set out in the album he proposed to bring, or had shown cause why a new action not contained in the album should be granted to him (editio actionis), the defendant was required to give security (vadimonium) for his second appearance in court to receive a judex. At the second appearance, after the nomination (addictio) of the judex and the joinder in issue or delivery of the formula (litis contestatio, judicium ordinatum, judicium acceptum), there was (at all events in the legis actiones) an adjournment to the next day but one (comperendinatio), and on this day the trial before the judex (judicium) proceeded. In the formulary system, then, there were two appearances in jure, one in obedience to the in jus vocatio, and a second for the assignment of a judex. In the Libellary system which prevailed in the time of Justinian the former of these appearances was suppressed, and instead thereof the plaintiff by a libellus conventionis sued out from the court a commonitio or summons to the defendant to appear before the court. On the service of this by a public officer the defendant was required to give cautio judicio sisti, security for his appearance for the arrangement of a judicium, and in default thereof was arrested, § 184, comm.
§ 47. The formula says Ejus [aestimationem] condemnato, not Id condemnato, because the Condemnatio did not impose specific performance but only pecuniary compensation. Bethmann-Hollweg, § 87. The lawyer’s manual of practice contained alternative formulae for the same ground of action. Sed tamen non parcam operae, et ut vos in vestris formulis, sic ego in epistolis, de eadem re alio modo, Cicero ad Familiares, 13, 27. ‘However, I will spare no trouble, and as you lawyers do in your books of formulae, I will present you in my correspondence with the same matter in another form.’ Quae cum Zeno didicisset a nostris, ut in actionibus praescribi solet, de eadem re dixit alio modo, De Finibus, 5, 19. ‘Zeno learnt this from the teachers of our school, and then, as the headings of the formulae say, handled the same subject in a different form.’
One great advantage of the actiones in factum was that they were available to filii familiarum. In factum actiones etiam filii familiarum possunt exercere, Dig. 44, 7, 13. It may have been for the purpose of enabling filii familiarum to sue that formulae in factum were given in some actions as well as formulae in jus. Cf. 1 § 55, comm.
We shall see hereafter that actio in factum differed from actio in jus in respect of (1) Plus petitio and in respect of (2) Novatio.
(1) An actio with a formula in factum concepta, having an intentio specifying a particular state of fact as the basis of the plaintiff’s claim, cf. § 60, would be capable of plus petitio: while an actio with a formula in jus concepta would only be capable of plus petitio where the intentio was certa, e.g. condictio certae pecuniae or certae rei, not where the intentio was incerta, Quidquid paret, &c.
(2) Novatio necessaria was only produced by Litis contestatio when the formula was in jus concepta, the right of the plaintiff not being referred to in the intentio of a formula in factum, § 107.
The words Nisi restituat (cf. formula of actio depositi, § 47), exhibeat, are the clause which constitutes a formula arbitraria. In the formulary system the condemnation was always pecuniary, § 48; the defendant was always condemned by the judgment to pay the plaintiff a sum of money. By means, however, of the alternative clause, nisi restituat, &c., in a formula arbitraria the plaintiff could put pressure on the defendant to make him restore or produce to the plaintiff a specific thing which would be a remedy something like that of specific performance in English Law. Thus by this clause the judex, having pronounced against the defendant, made a preliminary order (jussus, arbitrium) for the restitution or production of the thing; and if it was obeyed the defendant was absolved, but if it was disobeyed the plaintiff was allowed to assess his own damages on oath, whereby the defendant might in fact suffer a penalty for disobedience to the order. In later times, indeed, it seems to have become the practice for the judex in case of a recalcitrant litigant to forcibly (manu militari) compel restitution. Inst. 4, 6, 31.
Actiones arbitrariae included real actions, framed as formulae petitoriae, § 92 (e.g. vindicatio, publiciana, hereditatis petitio, confessoria, hypothecaria, cf. Inst. 4, 6, 31, where only praetorian actions are given as examples), and such other actions, whether civil or praetorian (e. g. depositi, commodati, locati, tutelae, rei uxoriae, doli, metus, interdictum de vi, §§ 162, 163), as were brought to obtain restitution or production. The formula arbitraria could not be used in an actio empti, for the object of this action was not of the nature of a restitution: nor could the formula arbitraria be employed in actions stricti juris or actions founded on delict, since a pecuniary condemnation was in these actions also sufficient remedy.
Of the formula arbitraria in a real action with a formula petitoria, §§ 91, 92, we have an instance in Cicero: Lucius Octavius judex esto: Si paret fundum Capenatem, quo de agitur, ex jure Quiritium [P. Servili] esse, neque is fundus [Q. Catulo] (cf. Roby, 2, 443, n. 1) restituetur, In Verrem. 2, 12; cf. 1, 45. In an action for the production as a preliminary to the restitution of a person or thing (ad exhibendum) the clause would be of the form ‘nisi exhibeat,’ ‘si arbitratu tuo Aulo Agerio non exhibebitur’ and generally some special modification of nisi actori satisfaciat. (As to the attempts which have been made to reconstruct this formula see Lenel, tit. xv. § 90.) In noxal actions, § 75, which are analogous in procedure to actiones arbitrariae, there was probably no clause ‘nisi noxae dedat,’ but the judgment was of the form Publium Maevium Lucio Titio decem aureis condemno aut noxam dedere, Inst. 4, 17, 1; the defendant being intended to exercise the election of paying damages or surrendering the author of the mischief.
As soon as the rule was established: omnia judicia esse absolutoria, § 114, that in every action a defendant might avoid condemnation by satisfying the plaintiff’s claim even after litis contestatio, it might seem at first sight that the formula arbitraria was rendered unnecessary. But this was not so; for in actiones which were not arbitrariae no alternative was allowed to the judex in the condemnatio, and the damages were not meant as a penal sum to enforce obedience to the judge’s order. Whereas in an actio arbitraria as soon as the arbitratus or order was pronounced, the defendant would know that he would inevitably be condemned unless he made the restitutio or exhibitio required.
The intentio of an action with a formula in factum concepta was sometimes one-limbed: e. g. Si paret . . . vocatum esse, § 46, and sometimes two-limbed: e. g. Si paret (1) Aulum Agerium rem deposuisse (2) eamque dolo malo Numerii Negidii Aulo Agerio redditam non esse, § 47. A one-limbed intentio would be used when the defence was a simple traverse or contradiction of the fact alleged by the plaintiff: a two-limbed formula would be used when the defendant confessed the fact alleged by the plaintiff, but alleged a second fact (performance, release, novation, &c.) whereby the obligation created by the former was extinguished or counteracted.
Accordingly it would be a mistake to suppose that the clause: eamque dolo malo Numerii Negidii Aulo Agerio redditam non esse: was equivalent to the arbitratus or clause ‘Ni restituat’ which in the preceding formula limits the condemnatio. The former clause raises the question whether restitution was made before the action was brought to trial (ante judicium acceptum), i. e. it is a clause in the intentio raising the question whether the action is well founded: the clause ‘Ni restituat,’ which concerns the condemnatio, gives the defendant power to make restitution at any time after the action was brought but before the condemnatio: and there is no reason why the clause ‘Ni restituat’ should not be added to the double-limbed as well as to the single-limbed formula in factum concepta or the formula in jus concepta. Thus we see that an actio in factum or an actio bonae fidei may or may not be also arbitraria (cf. Sohm, p. 289). The position of the clause ‘Nisi restituat’ varied: (1) in real and praetorian personal actions, the latter with an intentio in factum concepta, the words Neque (or nisi, &c.) ea res arbitrio judicis restituetur, Dig. 4, 2, 14, 11, intervened between the intentio and condemnatio; (2) in a bonae fidei actio ‘Nisi restituat’ followed the first clause of the condemnatio, § 47. The Edict used the clause ‘Nisi restituat’ or its equivalent in other actions which are not Arbitrariae: e. g. in actio de recepto:—Nautae, caupones, stabularii, quod cujusque salvum fore receperint, id Nisi restituent, in eos judicium dabo, Dig. 4, 9, 1, pr.; and against Publicani, Dig. 39, 4, 1, pr. Here, it would seem, the non-restitution would form a part of the intentio, and would refer to the time before Litis contestatio. In actio Constitutae pecuniae the intentio was composed of three allegations: a pre-existing debt, a promise to pay, and its non-fulfilment, § 171, comm.
§ 48. From the expression of Gaius, non ipsam rem condemnat sicut olim fieri solebat, we might suppose that statute-process (legis actio) differed from Formulary procedure in that, while in the latter the condemnation was always pecuniary, in the former, as in the last stage of Roman Law, the plaintiff recovered the specific object of litigation and not its pecuniary value. But it would be strange if Roman jurisprudence had thus retrograded, and its second stage had been less perfect than its first: and the meaning of Gaius doubtless is, that, whereas in the Formulary system a single action decided the claims of the plaintiff and assessed their money value, in the primitive system two actions were necessary; a principal action to decide on the justice of the plaintiff’s claim, and a supplementary action or proceeding to transform it into money. Probus (see Huschke, Jurispr, Antejust.) apparently refers to such a proceeding in which the plaintiff who had succeeded in his principal suit demanded an arbiter to assess the damages, when he uses the term A. L. A. or Arbitrum liti aestimandae. This arbitrium would not be reckoned among the forms of statute-process because it was merely accessory to the actio sacramenti or principal action. Bethmann-Hollweg, § 87. Keller, C. P. § 16.
Two incidents of litis aestimatio in the formulary procedure deserve notice: (1) Jusjurandum in litem, and (2) the determination of the moment to be considered by the judex in appraising the value of the plaintiff’s interest.
(1) Jusjurandum in litem was not like jusjurandum necessarium a substitute for a judgment, but only one of the means of proof whereon in certain actions a judgment might be founded. These actions were (a) principally actiones arbitrariae, though they might be also simply bonae fidei actiones. To induce the defendant to avoid condemnation by obedience to the judge’s arbitratus, if the defendant contumaciously refused obedience, or by dolus or culpa lata had rendered himself unable to yield obedience to the order of the judex, the value of the plaintiff’s interest in the subject of litigation (litis aestimatio) was not ascertained, as in other cases, by the judex with or without the aid of experts, but by the oath of the plaintiff. Although he was required to name the true value (quanti actoris intersit), not a mere fancy value or so-called value of affection, yet his conscientious estimate would naturally be higher than that of an impartial judge or disinterested valuer: and the largeness of the alternative condemnation would incline the defendant to make a specific restitution.
(b) Even in actiones stricti juris and actiones ex delicto, if litis aestimatio, owing to the culpa of the defendant, is otherwise impossible to the judex; if, for instance, in the actio legis Aquiliae the subject has ceased to exist, then the judex may employ the oath of the plaintiff as a subsidiary evidence of the plaintiff’s particular interest in the subject and of its market value. The actio injuriarum given by the Praetor is specially called aestimatoria because damages in it were assessed in this way, 3 § 224. Vangerow, § 171.
(2) The Date of valuation, or time at which the value of the specific thing due from the defendant was estimated, depended on the nature of the action. As a general rule the date of valuation in stricti juris actions was the date of Litis contestatio, in Bonae fidei and Real actions the date of Condemnatio, Dig. 13, 6, 3, 2. But if a date for performance had been fixed in a contract that date was the date of valuation, Dig. 13, 3, 4. Again, if the defendant had been guilty of Mora, 2 §§ 260-289, comm., the plaintiff had his election between any of these dates and the date of Mora, Dig. 19, 1, 3, 3, Dig. 17, 1, 37. The foregoing only relates to Real actions and Personal actions grounded on Dispositions (contracts and quasicontracts): in personal actions grounded on Delict, the date of valuation was the date of delict, the date, in other words, of the inception of obligation.
These different dates for valuation were expressed in the formula by a different wording of the Condemnatio. In Real actions, § 51, and in Bonae fidei actions, § 47, where the date was the date of passing judgment or condemnation, the formula contained the words: quanti ea res erit; in delicts, where the date of valuation was the date of delict, it contained the words: quanti ea res fuit, Dig. 9, 2, 2. No traces exist of the condemnatio employed in Condictions whose time of valuation was the time of Litis contestatio; but there can be little doubt that it contained the words: quanti ea res est, Savigny, § 275.
It has already been mentioned, 3 § 212, comm., that the value assessed might be not simply the market value of the thing but its value to the plaintiff, including mediate as well as immediate value.
In the legislation of Justinian the rules respecting litis aestimatio were of somewhat less importance, because the condemnatio would be in some cases no longer pecuniary but might command the conveyance of property (dare), delivery of possession (tradere), restitution (restituere), or production (exhibere), of the specific thing itself that was the object of litigation. The defendant was no longer invited, as in the actio arbitraria of the formulary system, but compelled by the armed force of the state, to make specific delivery or restitution, Dig. 6, 1, 68. ‘If a defendant allege inability to obey an order of restitution, if the thing exists, the court uses the military power to put the plaintiff in possession, and only condemns the defendant for the mesne profits and deteriorations. If the defendant has maliciously disabled himself from restitution, he is condemned in the amount, subject to no taxation of the amount, at which the plaintiff on oath assesses his loss; if the inability is not maliciously produced, the judge assesses the damages. This applies to all interdicts and actions, real and personal, where the court orders restitution.’ But in most obligations of performance or non-performance the condemnation was still necessarily pecuniary: Quia non facit quod promisit, in pecuniam numeratam condemnatur, sicut evenit in omnibus faciendi obligationibus, Dig. 42, 1, 13.
§ 49. In condictio certae pecuniae, as we have seen, § 5, comm., both the Intentio and the Condemnatio are certae: in condictio Triticaria, as in Real actions, the Intentio, naming certa res, is likewise certa; but the Condemnatio, containing the words, Quanti ea res est, is incerta. A loan (mutuum) of money (pecunia certa credita) always gave rise to a condictio certae pecuniae and could not be recovered by any other form of suit: whereas a loan (mutuum) of any other quantitas (corn, wine, oil, &c.) founded a condictio triticaria. The difference of the formulae in these actions explains the following rule of substantive law, which otherwise seems capricious: A valid informal convention (nudum pactum) for interest could be annexed to a loan of corn, wine, or oil, Cod. 4, 32, 23, but not to a loan of money, Dig. 19, 5, 24.
The reason was this: the loan of any other quantitas than money, having an incerta condemnatio, allowed the judge of a suit brought for recovery of the principal to include interest in the sum which he condemned the defendant to pay: whereas the money loan having a certa condemnatio, coinciding with the intentio in the sum it defined, the judge of a suit brought for the principal, under pain of litem suam facere, § 52, could only condemn the defendant to pay the principal.
If, then, interest on a loan of money was intended to be paid, it was necessary to secure it by a formal contract (stipulatio) which would found an actio ex stipulatu distinct from the condictio certi which might be brought for the principal: whereas interest for any other quantitas could be secured by a pactum nudum annexed to the agreement to return number, weight, or measure of the principal, and recovered in the action brought for the principal.
As the stringency of the rule respecting money loans depended on the peculiarity of the formula, it should not have been retained by Justinian after the abolition of the Formulary procedure. Savigny, System, § 268.
The wording of the formula in Condictio certae pecuniae was doubtless the reason why in the Formulary period the legatee could not recover interest on his legacy, 2 § 280.
§ 52. A judex might make a cause (liability, condemnation) his own (litem suam facere) by corruption or carelessness, Inst. 4, 5, 1, pr. Thus if he gave a wrong judgment from dolus, he was liable to be condemned in the whole amount under litigation, Dig. 5, 1, 15, 1. If from culpa, he was liable to be condemned in such damages as the judge in his discretion should assess, Dig. 50, 13, 6. This is one of the obligations classified in the Institutes of Justinian and also by Gaius in the passage of the Digest last cited, which is an excerpt from his writings, under the head of obligationes quasi ex delicto or quasi ex maleficio.
§ 53. |Si quis intentione plus conplexus fuerit, causa cadit, |id est rem perdit, nec a praetore in integrum restituitur exceptis | quibusdam casibus, in quibus—praetor non patitur |—|—NA
Inst. 4, 6, 33.
§ 53 a.Plus autem quattuor| modis petitur: re, tempore, loco, causa. re, ueluti si quis pro x |milibus quae ei debentur xx milia petierit, aut si is, cuius | ex parte res est, totam eam aut maiore ex parte suam | esse intenderit.
Inst. l. c.
§ 53 b.Tempore plus petitur, ueluti si quis | ante diem petierit.
Inst. l. c.
§ 53 c.Loco plus petitur, ueluti si quod certo loco | dari promissum est, id alio loco sine commemoratio|ne eius loci petatur, uelut si quis ita stipulatus fuerit ephesi | dare spondes?, deinde Romae pure intendat dari sibi oportere. |—|NAdare mihi oportere—|—NA
(2 uersus in C legi nequeunt) — petere id est non adiecto loco.
Inst. l. c.
§ 53 d. Causa plus petitur, uelut si quis in intentione tollat electionem debitoris quam is habet obligationis iure: uelut si quis ita stipulatus sit sestertivm x milia avt hominem stichvm dare spondes? deinde alterutrum ex his petat; nam quamuis petat quod minus est, plus tamen petere uidetur, quia potest aduersarius interdum facilius id praestare quod non petitur. similiter si quis genus stipulatus sit, deinde speciem petat: ueluti si quis purpuram stipulatus sit generaliter, deinde Tyriam specialiter petat; quin etiam licet uilissimam petat, idem iuris est propter eam rationem quam proxime diximus. idem iuris est, si quis generaliter hominem stipulatus sit, deinde nominatim aliquem petat, uelut Stichum, quamuis uilissimum. itaque sicut ipsa stipulatio concepta est, ita et intentio formulae concipi debet.
Inst. l. c.
§ 54. Illud satis apparet in incertis formulis plus peti non posse, quia, cum certa quantitas non petatur, sed qvidqvid aduersarium dare facere oportet intendatur, nemo potest plus intendere. idem iuris est et si in rem incertae partis actio data sit: uelut talis qvantam partem paret in eo fvndo qvo de agitvr actoris esse; quod genus actionis in paucissimis causis dari solet.
§ 55. Item palam est, si quis aliud pro alio intenderit, nihil eum periclitari eumque ex integro agere posse, quia nihil ante uidetur egisse: ueluti si is, qui hominem Stichum petere deberet, Erotem petierit; aut si quis ex testamento dari sibi oportere intenderit, cui ex stipulatu debebatur; aut si cognitor aut procurator intenderit sibi dari oportere.
Inst. 4, 6, 35.
§ 56. Sed plus quidem intendere, sicut supra diximus, periculosum est; minus autem intendere licet; sed de reliquo intra eiusdem praeturam agere non permittitur. nam qui ita agit, per exceptionem excluditur, quae exceptio appellatur litis diuiduae.
Inst. 4, 6, 34.
§ 57. At si in condemnatione plus positum sit quam oportet, actoris quidem periculum nullum est, sed 〈reus cum〉 iniquam formulam acceperit, in integrum restituitur, ut minuatur condemnatio. si uero minus positum fuerit quam oportet, hoc solum consequitur 〈actor〉 quod posuit; nam tota quidem res in iudicium deducitur, constringitur autem condemnationis fine, quam iudex egredi non potest. nec ex ea parte praetor in integrum restituit; facilius enim reis praetor succurrit quam actoribus. loquimur autem exceptis minoribus xxv annorum; nam huius aetatis hominibus in omnibus rebus lapsis praetor succurrit.
§ 58. Si in demonstratione plus aut minus positum sit, nihil in iudicium deducitur, et ideo res in integro manet; et hoc est quod dicitur falsa demonstratione rem non perimi.
§ 59. Sed sunt qui putant minus recte conprehendi, ut qui forte Stichum et Erotem emerit, recte uideatur ita demonstrare qvod ego de te hominem erotem emi, et si uelit, de Sticho alia formula agat, quia uerum est eum qui duos emerit singulos quoque emisse; idque ita maxime Labeoni uisum est. sed si is qui unum emerit de duobus egerit, falsum demonstrat. idem et in aliis actionibus est, ueluti commodati et depositi.
§ 60. Sed nos apud quosdam scriptum inuenimus, in actione depositi et denique in ceteris omnibus, ex quibus damnatus unusquisque ignominia notatur, eum qui plus quam oporteret demonstrauerit, litem perdere: ueluti si quis una re deposita duas pluresue 〈se de〉posuisse demonstrauerit; aut si is, cui pugno mala percussa est, in actione iniuriarum etiam aliam partem corporis percussam sibi demonstrauerit. quod an debeamus credere uerius esse, diligentius requiremus. certe cum duae sint depositi formulae, alia in ius concepta, alia in factum, sicut supra quoque notauimus, et in ea quidem formula, quae in ius concepta est, initio res de qua agitur demonstratorio modo designetur, deinde inferatur iuris contentio his uerbis qvid-qvid ob eam rem illvm illi dare facere oportet; in ea uero quae in factum concepta est, statim initio intentionis alio modo res de qua agitur designetur his uerbis si paret illvm apvd 〈illvm rem〉 illam deposvisse: dubitare non debemus, quin si quis in formula, quae in factum conposita est, plures res designauerit quam deposuerit, litem perdat, quia in intentione plus pos—
(24 uersus in C legi nequeunt)—
Inst. 4, 6, 36-38
(24 uersus in C legi nequeunt)
Inst. 4, 6, 39.
§ 53. If the Intentio claim more than the plaintiff is entitled to, he loses his entire claim, and is not restored to his original position by the praetor except in a few cases where minors and others are not permitted by him to suffer the consequences of their mistake.
§ 53 a. A plaintiff may claim too much in four ways, (1) in amount, (2) in time, (3) in place, (4) in his statement of the case: in amount, if instead of ten thousand sesterces, which are due to him, he claims twenty thousand, or if being co-proprietor he claims as sole proprietor, or more than his share:
§ 53 b. in time, if he demands to be paid at an earlier time than he stipulated for:
§ 53 c. in place, if he demands payment at a forum without mentioning that it is not the place at which he contracted to be paid: if, for instance, having stipulated—‘Do you promise to pay at Ephesus?’ he subsequently sues at Rome for payment without referring in his formula to Ephesus.
§ 53 d. He claims too much by his statement of the case if he deprives the debtor of an election to which he was entitled by the contract; for instance, if he stipulated to receive alternatively either ten thousand sesterces or the slave Stichus, and makes an unconditional claim for one or the other. For though the one that he claims be of lesser value, he nevertheless seems to claim too much because the other may be more convenient for the debtor to render. So if he stipulated for a genus and demands a species, stipulated, for instance, for purple and demands Tyrian purple, even though he demand the cheapest species, he claims more than his due, for the same reason. So he does if he stipulated generally for a slave and claims a certain slave, Stichus, for instance, however worthless. The intentio, then, must exactly pursue the terms of the stipulation.
§ 54. It is clear that an intentio naming an uncertain sum as due to the plaintiff, cannot be excessive, for it claims no certain quantity, but only whatever the defendant ought to convey or perform. The same is true of real actions to recover uncertain shares, as that whereby a plaintiff claims whatever portion of an estate he may be entitled to, which kind of action is very seldom granted.
§ 55. It is also clear that the plaintiff who claims the wrong thing in his intentio, runs no risk and can bring a fresh action because his right has not been tried; if he is entitled, for instance, to Stichus and claims Eros, or if he is entitled by stipulation and alleges in the intentio that he is entitled to have the object made over to him under a will, or if a cognitor or procurator claim to have the object made over to him in his own right instead of in the right of his principal.
§ 56. To claim too much in the intentio, as I have said, is dangerous; but a man who claims in the intentio less than his right does not forfeit his right, but cannot sue for the remainder in the same praetorship, for he is repelled by the exception against division of actions.
§ 57. If too much is claimed in the condemnatio the plaintiff is not imperilled, but, since the defendant has taken a formula which is unfair to him, he may obtain a reduction of the condemnation by in integrum restitutio. If less is laid in the condemnatio than the plaintiff is entitled to, he only obtains that amount, for his whole right has been brought before the judex and is restricted by the amount laid in the Condemnatio, a limit which the judex cannot exceed; and in this case the praetor gives no relief by in integrum restitutio, for he is more ready to relieve defendants than plaintiffs, excepting always minors, whom he invariably relieves.
§ 58. If more or less is laid in the demonstratio, the plaintiff’s right is not at all brought into the action and therefore remains intact, and this is the meaning of the saying, that a right is not consumed by a false demonstration.
§ 59. Some think that the demonstratio may be properly restricted to less than is due; thus a man who has bought both Stichus and Eros may state in his Demonstratio, ‘Whereas I bought of you the slave Eros,’ and sue for Stichus by another formula, because it is true that the purchaser of both is also the purchaser of each; and this was more especially Labeo’s opinion. But if the purchaser of one sues in respect of two, the Demonstratio is false; and the same principle applies to actions of Loan for use and Deposit.
§ 60. I have read in some writers that in actions of Deposit, and wherever condemnation involves infamy, a plaintiff loses his action if his demonstratio exceeds the amount due, for instance, if he deposited one thing and says in the demonstratio that he deposited two, or if he was struck in the face and his demonstratio in an action of assault says he was struck in other parts also. But let us carefully examine this opinion. There are two formulas of the action of Deposit, one framed in jus, the other in factum, as we said before, § 47. The formula in jus begins by defining the title or ground of action in the demonstratio, and then in the Intentio which follows introduces as a consequence the question of law in these terms: ‘Whatever the defendant ought on account of this thing to convey or perform.’ Whereas the formula of fact commences at once without any preceding demonstratio with another form of intentio designating the ground of action, thus: ‘If it be proved that such a plaintiff deposited such a thing with such a defendant.’ Certainly in the latter case, that is, in a formula of fact, if the plaintiff asserts that he deposited more things than he really deposited, he loses the action, because the excess is in the intentio . . . .
§ 53 c. According to Roman law a judex could only condemn a defendant to make payment at a place within the jurisdiction. Hence when the Forum or jurisdiction of a court in which an action on a contract is brought happened to differ from the place specified in the contract as the place where a certain act (payment, delivery, conveyance, &c.) was to be performed, if the contract was such as naturally to ground a Condictio (actio stricti juris), he could not condemn; and so in order to avoid the fault of Plus petitio, which would be fatal to the present claim and to any subsequent claim on the same contract, it was necessary to sue, not by a Condictio which would be the proper form if the action were brought at the stipulated place of performance, but by a special kind of formula Arbitraria (actio de eo quod certo loco). In such an actio Arbitraria the judge could consider the difference of place and meet the demands of equity by increasing or diminishing the amount which his arbitratus required the defendant to pay in order to avoid condemnatio. If the contract were such as to give rise to an actio bonae fidei, it would not be necessary to sue by formula Arbitraria in order to avoid Plus petitio, for the judex of an actio Ex bona fide had more discretion than the judex of a Condictio and by the wording of his commission, Ex fide bona, could allow for the difference of place if performance were enforced at a place different from that specified in the contract. A defendant who lost an action was bound to make payment at the forum where the action was brought: ibi erit praestandum ubi petitur, Dig. 30, 47, 1. So where no place of performance was implied or fixed by the contract, the plaintiff could sue the defendant, in any place where the condemnation could be enforced against him.
To understand the foregoing we must consider the various tribunals before which an action can be instituted: at what forum or before what judge a plaintiff can sue a defendant.
The Forum at which an action can be brought is twofold: it is either General or Special. The General forum is the forum of the domicil of the defendant: actor rei forum, sive in rem sive in personam sit actio, sequitur, Cod. 3, 19, 3. Juris ordinem converti postulas, ut non actor rei forum sed reus actoris sequatur, Cod. 3, 13, 2. See 3 § 75, comm.
The Special forum depends on the nature of the right to be litigated: or the department of the code to be applied.
The special forum of a Real right may be the forum where the Res (object of property, servitude) is situated (forum rei sitae). This was not established in classical Roman law, when execution related not to res but to litis aestimatio, but only in the later period. Non ejusdem provinciae praesidem adeundum ubi res de quibus agitur sitae sunt, sed in quâ is qui possidet sedes ac domicilium habet. Frag. Vat. § 326.
The special forum of an Obligation is generally, in Roman law, the forum of the place where the act is covenanted to be performed (forum Solutionis). It was when a stipulation was enforced at the general forum of the defendant instead of at the special forum of the stipulation that it was necessary to use the formula Arbitraria. For the rules of English law on this subject, which are of a less restricted character than those of Roman law, see order 11 rule 1.
The special forum of a Delict is the place where the delict was committed.
The special forum of Insolvency coincides in Roman law with the general forum, i. e. is the domicil of the insolvent.
The special forum of the action for claiming anything by title of an inheritance (hereditatis petitio) is the forum of the place where the object of inheritance is situated which the heir is claiming (forum rei Sitae).
Distinct from the question of the Forum that has jurisdiction over a right or obligation is the question of the Law that defines such right or obligation: what local, municipal, or national Law governs the relation of the plaintiff and defendant, and has to be administered by the Forum, whatever and wherever it may be, that exercises jurisdiction.
The question of the Forum before which a suit must be instituted and of the particular Law which such Forum must administer may arise (1) within the limits of a single state when divided, like the Roman empire, into municipalities with separate jurisdictions and, to a certain extent, separate laws: or (2) in more or less intimate unions of cantons, or states, such as we see in Switzerland, Germany, America; or (3) between different sovereign states.
The territorial, local, or municipal law that governs a particular question may be determined by various circumstances such as the domicil or the nationality (as in some modern codes) of a person (testator, intestate, insolvent, husband, disposer, debtor, &c.): the place where the object of property is situated: the place of performance of an act past or future (disposition, stipulated service): or the place where the formalities of an act were transacted.
Thus in a question of Ownership the law to be applied may be the lex loci rei Sitae. E. g. in France property in goods passes by contract of sale, in Germany by tradition. A Frenchman in France sells to another Frenchman his goods in Germany. The property only passes by tradition. A German in Germany sells to another German his goods in France. The property passes by the mere contract of sale.
In a question of contract the law to be applied generally depends on the intention of the parties as shown by their agreement; thus the law which is intended is often presumed to be that of the place of performance.
The Roman doctrine that Inheritance is a Universal succession implies that the ideal patrimony has its single seat in the nationality or domicil of the heritage-leaver and is governed by the law of that nationality or domicil. Thus the law which governs Succession is not, after the analogy of the former cases, the law of the special forum of Succession: for whereas the law which governs Succession is the law of the heritage-leaver’s nationality or last Domicil, we have seen that the special forum of Succession, in respect of objects of ownership, is the forum rei Sitae.
But though the law of the testator’s nationality or last domicil principally governs his dispositions (questions relating to institution, disinheritance, preterition, inofficiositas, legacies, &c.), yet there are some elements of a will to which other laws must be applied. The capacity of the testator (testamenti factio, commercium) must exist both at the date of executing the will and at the date of his decease: and must be tested at the former date by the law of his then domicil. Again the capacity of honoratus (heir or legatee) is governed by the law of the domicil of honoratus at the time of the testator’s death. Indeed in Roman times, though not in modern Germany, this capacity was required at tria tempora, the making of the will, the death of the testator, and the acquisitio by honoratus, 2 §§ 109-114, comm., and was governed at each period by the law of his then domicil.
The Capacity of a person for contracting and otherwise disposing is governed by the law of his nationality or domicil: with this reservation, that Majority once attained cannot be divested in respect of past acts by a mere change of domicil: by settling, that is to say, in a new domicil where majority comes later.
The validity of the Form of any disposition (contract, marriage, testament, &c.) may depend on the law by which the substance of the disposition is governed (the law of the stipulated place of performance, the law of the husband’s nationality or domicil, the law of the testator’s domicil at the time of making his will). But inconveniences would arise if this law were exclusive. For instance, a German will can only be made with the assistance of a court. In France no court is authorized to give its assistance to the execution of a will, which is the function of the Notary. A German, then, domiciled in Germany but dying in France, would be unable to execute a will if he could only do it in the form prescribed by German law. Accordingly, as an alternative to the law that governs the disposition, the law of the place where the disposition is made is accepted: and the form of a disposition is valid if it satisfies either the proper law of the disposition or the law of the territory in which the disposition is made. The applicability of the latter law is expressed by the maxim: Locus regit actum. We must except the forms of Alienation which must always satisfy the lex rei sitae.
Procedure is governed by the law of the forum where a suit is instituted. Dilatory exceptions, accordingly, as based merely on rules of procedure, depend on the law of the forum. But the material contentions of the defence, that is, the rights of the defendant, whether ipso jure extinctive, or per exceptionem peremptoriam counteractive, of the rights of the plaintiff, are governed by the same law as the rights of the plaintiff; that is by the local law that governs the obligation. The Exceptio Sc. Macedoniani and Sc. Vellaeani, however, as relating to personal Capacity, are governed by the law of the domicil of the person in question.
Procedure in Bankruptcy being a partial or imperfect Execution, its leading feature, the Classification or marshalling of creditors, like other matters of Procedure, is governed by the law of the Forum by which the execution is superintended, which will, generally speaking, be the law of the nationality or domicil of the Insolvent. The priorities of the purely personal creditors, that is to say, will be governed by the law of the forum: but where there are hypothecary creditors who hold mortgages over property of the insolvent in other lands, their priorities involving questions of Real rights will depend on the lex rei sitae. The preliminary Proof by the creditors of their particular claims will be governed by the law (law of the stipulated place of performance, &c.) which according to general rules is applicable to the obligations they respectively seek to enforce.
Exceptions to most of the preceding rules are produced not only by general variations in principle between the administration of Private International Law in different states but also by the existence of Imperious and Anomalous laws: laws based on religious, moral, political, financial, administrative, instead of purely civil, motives: such as laws relating to heresy, usury, gambling, revenue, mortmain; or laws implying institutions (e. g. slavery, civil death) unrecognized by other states. Each forum enforces its own Imperious or Anomalous laws, and disregards those of its neighbour. For instance a monogamist forum will not enforce polygamistic laws, nor will any forum enforce the penal laws which a neighbour levels against its coreligionists.
Obligation founded on Delict is always the subject of such Imperious laws: accordingly civil obligation ex delicto, unlike obligation ex contractu, is governed by the laws of the state in which it is remedied.
The rules of which the above are a specimen constitute what is called the Comity of nations or Private international law. The ideal aim of the Comity of nations is: that the judgment passed on any controversy should be identical whatever may be the tribunal that happens to exercise jurisdiction. Savigny, System, vol. 8. Cf. Westlake, Treatise on Private International Law, and Dicey, Conflict of Laws.
§ 53 b. The penalty of plus petitio in respect of time was reduced by Zeno, who merely doubled the term that was still to run before payment, and required the creditor to pay the costs of the former action before he brought a second, Cod. 3, 10, 1. The effect of this was to change the meaning of the term ‘dilatoria,’ which, as applied to an exceptio and opposed to peremptoria, denoted an exceptio alleging plus petitio in Time.
When Gaius wrote, such an exception, if successfully alleged, was just as fatal to the creditor as an exceptio peremptoria. It was temporary, not in respect of its effects, but of the limited period during which it was at the command of the debtor. But after Zeno such an exceptio was temporary in its effects, and did not prevent a renewal of the action after a certain lapse of time, that is, after the expiration of the term originally fixed for the payment, and an additional term measuring the temporal excess of the plaintiff’s claim. Justinian retained Zeno’s law in respect of Time, and disarmed the other modes of plus petitio of their terrors, by merely making the creditor liable to three times the amount of the loss that his exorbitant claim had caused to the debtor, particularly in respect of the fees (sportulae) of the executive officers (executores), Cod. 3, 10, 2.
§ 55. A plaintiff who had made a mistake in the subject of his claim was allowed by Justinian to amend his claim without instituting a new action.
It seems from this paragraph that the title or ground of action (causa debendi) was sometimes specified in the Intentio. Perhaps this was done in condictio ex testamento and actio ex stipulatu, which had no Demonstratio, and then availed to prevent the consumption of the right of action; that is, the allegation of the plea of Res judicata when the plaintiff afterwards claimed the same sum but founded his claim on a different title. Cf. § 131.
§ 56. A plaintiff whose intentio claimed less than he was entitled to was allowed by Zeno to obtain the full amount without instituting a new action, Inst. 4, 6, 34.
§ 58. As plus petitio implies intentio certa, and the existence of a demonstratio involves intentio incerta, it follows that excess in the demonstratio cannot involve plus petitio. Again, as the demonstratio does not determine what is the res in judicium deducta, a falsa demonstratio cannot consume the true ground of action.
§ 60. It appears that some jurist had regarded the first clause of an actio in factum, si paret . . . fecisse, as a demonstratio. Gaius himself, in speaking of this clause, used ambiguous terms, nominato eo quod factum est, § 46. But it is clear from § 60 that he holds it to be no Demonstratio, but an Intentio.
The plaintiff who lost an actio in factum did not, strictly speaking, lose his right to bring another action, for novatio, or transformation of his original right into a right to have judgment, was only operated by the commencement of a personal action in jus. But this made no practical difference, for though his own right (ipsum jus) was not extinguished, it was counterpoised by an opposite right of the defendant based on the claim having been brought to trial (exceptio rei in judicium deductae or judicatae), which would cause any suit instituted by the plaintiff to be dismissed.
§ 61. — continetur, ut habita ratione eius, quod inuicem actorem ex eadem causa praestare oporteret, in reliquum eum cum quo actum est condemnare.
Inst. 4, 6, 30.
§ 62. Sunt autem bonae fidei iudicia haec: ex empto uendito, locato conducto, negotiorum gestorum, mandati, depositi, fiduciae, pro socio, tutelae, rei uxoriae, 〈commodati, pigneraticium, familiae erciscundae, communi diuidundo〉.
Inst. 4, 6, 28.
§ 63. Liberum est tamen iudici nullam omnino inuicem conpensationis rationem habere; nec enim aperte formulae uerbis praecipitur, sed quia id bonae fidei iudicio conueniens uidetur, ideo officio eius contineri creditur.
§ 64. Alia causa est illius actionis qua argentarius experitur: nam is cogitur cum conpensatione agere, et ea conpensatio uerbis formulae exprimitur: adeo quidem, ut ab initio conpensatione facta minus intendat sibi dari oportere. ecce enim si sestertiumx milia debeat Titio, atque ei xx debeantur, sic intendit si paret titivm sibi x milia dare oportere amplivs qvam ipse titio debet.
§ 65. Item bonorum emptor cum deductione agere iubetur, id est ut in hoc solum aduersarius eius condemnetur quod superest, deducto eo quod inuicem ei bonorum emptor defraudatoris nomine debet.
§ 66. Inter conpensationem autem quae argentario opponitur, et deductionem quae obicitur bonorum emptori, illa differentia est, quod in conpensationem hoc solum uocatur, quod eiusdem generis et naturae est: ueluti pecunia cum pecunia conpensatur, triticum cum tritico, uinum cum uino; adeo ut quibusdam placeat non omni modo uinum cum uino aut triticum cum tritico conpensandum, sed ita si eiusdem naturae qualitatisque sit. in deductionem autem uocatur et quod non est eiusdem generis. itaque 〈si —〉 si uero pecuniam petat bonorum emptor et inuicem frumentum aut uinum is debeat, deducto quanti id erit in reliquum experitur.
§ 67. Item uocatur in deductionem et id quod in diem debetur; conpensatur autem hoc solum quod praesenti die debetur.
§ 68. Praeterea conpensationis quidem ratio in intentione ponitur; quo fit, ut si facta conpensatione plus nummo uno intendat argentarius, causa cadat et ob id rem perdat. deductio uero ad condemnationem ponitur, quo loco plus petenti periculum non interuenit; utique bonorum emptore agente, qui licet de certa pecunia agat, incerti tamen condemnationem concipit.
§ 61. In bonae fidei actions the judex has full power to assess on good and equitable grounds the amount due to the plaintiff, and can take into account the cross demand in the same transaction of the defendant, and condemn the defendant in the remainder.
§ 62. Bonae fidei actions are those of Purchase and Sale, Letting and Hiring, Unauthorized Agency, Agency, Deposit, Fiduciary conveyance, Partnership, Guardianship, dotal property, [loan of use, Pledge, Partition of inheritance, Partition of property held in common].
§ 63. The judex may, if he pleases, refuse to take any account of a set off, since he is not expressly instructed by the terms of the formula to do so, but as it seems suitable to the nature of a bonae fidei action, the power is assumed to be contained in his commission.
§ 64. It is otherwise in the action instituted by a banker for the balance of an account, for the banker is compelled to include a set off in his action and make express recognition of it in his formula, so much so that he must allow for any set off from the first, his Intentio only claiming the balance. Thus if he owes ten thousand sesterces to Titius, and Titius owes him twenty thousand, his Intentio runs as follows: ‘If it be proved that Titius owes him ten thousand sesterces more than he owes Titius.’
§ 65. Likewise the purchaser of an insolvent debtor’s estate must when he sues do so with a deduction in his formula, that is in the condemnatio only require the defendant to pay what he owes after deduction of what is due to him in turn from the purchaser as representing the debtor who has failed.
§ 66. Between the set off which is made against the claim of the banker and the deduction from the claim of the purchaser of an insolvent’s estate there is this difference, that set off is confined to claims of the same genus and nature; money, for instance, is set off against money, wheat against wheat, or wine against wine; and some even hold that not every kind of wine or every kind of wheat may be set off against wine and wheat, but only wine and wheat of the same nature and quality. Deduction, on the contrary, is made of a debt of a different genus. Thus, if a purchaser of an insolvent’s estate sues for money owed to the insolvent a person to whom he himself, as the insolvent’s successor, owes corn or wine, he has to deduct the value of the corn or wine and bring the action only for the residue.
§ 67. Again, deduction is made of debts not yet due, set off only of debts already due.
§ 68. Again, set off is inserted in the Intentio, and if the Intentio of the banker is one sesterce more than the balance, he loses his present cause and on this account also his future claim; whereas the deduction is introduced in the Condemnatio, where an excessive claim is not hazardous; especially as the purchaser of an insolvent’s estate, though the debt he claims is certain, draws up the condemnatio for an uncertain amount.
§ 61. Compensatio or cancelling of cross claims by setting off one against another (compensatio est debiti et crediti inter se contributio, Dig. 16, 2, 1) was originally limited to claims of the parties growing out of the same ground (ex eadem causa, § 61), hence there could be no set-off in an action for enforcing a unilateral obligation; but the transaction must be one that generated either a bilateral obligation and gave to both parties an actio directa, e. g. emptio venditio,—or a semi-bilateral obligation, giving to one party actio directa and to the other actio contraria, e.g. commodatum. In other words, Compensatio was not possible in actions stricti juris, such as condictio, but confined to actions bonae fidei. The emperor Marcus Aurelius allowed Compensatio to be urged against claims based on transactions that could only generate unilateral obligations, and so made the identity of title (eadem causa) unnecessary: in other words, he admitted Compensatio in Condictiones or stricti juris actiones. (It was merely by inadvertence that Justinian in compiling his own Institutions out of those of Gaius retained the words ex eadem causa in the definition of Compensation, Inst. 4, 6, 39. Savigny, § 45.)
In an actio bonae fidei, to which it had been previously limited, Compensation of the defendant’s counterclaim ex eadem causa would not require to be commanded by an exceptio doli, but would be included in the officium judicis; i. e. could be made by the judex if it seemed good to him (cf. § 63 as newly deciphered by Studemund, liberum est tamen judici nullam omnino invicem compensationis rationem habere) in virtue of the terms ex bona fide contained in the formula which gave him his commission. In an actio stricti juris, after the rescript of Marcus Aurelius, the judex could be obliged to make compensation by the Exceptio Doli mali, but only if the exception was expressly inserted in the formula: Sed et in strictis judiciis ex rescripto divi Marci, opposita doli mali exceptione, compensatio inducebatur, Inst. 4, 6, 30. The effect of this change seems to have been to establish Compensatio for the first time as a definite right of the defendant, which the judex must allow him to make use of, and this may possibly be the meaning of the much controverted phrase ‘ipso jure compensari,’ Inst. 4, 6, 30; Dig. 16, 2, 21; Cod. 4, 31, 14. Cf. Dernburg, Geschichte und Theorie der Kompensation, p. 310; Pandekten, § 62, notes 13, 14.
The exception was of the form: Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat, § 119: and we find in the Digest a definition of Dolus that seems intended to apply to a claim for Compensation: Dolo facit qui petit quod redditurus est, Dig. 44, 4, 8.
Some writers hold that this exceptio empowered the judex, not to make compensation but simply to give judgment against the plaintiff on the ground of his making what according to the principles of bona fides amounted to Plus petitio; and they explain that this was not so iniquitous as at first sight it may appear, as the loss of the action would only be a penalty to the plaintiff for refusing to employ a formula containing a Compensatio or Deductio, the usage of these formulae being in effect generalized by the rescript of Marcus Aurelius.
Vangerow, on the other hand, § 607, observes that we have no evidence that an intentio modified by a Compensatio or Deductio was ever employed by any plaintiff but the Argentarius and Bonorum emptor: while we are expressly informed by Theophilus 4, 6, 30, that the effect of Exceptio doli might be to diminish the condemnatio, instead of the usual one of entirely absolving the defendant; which again is consistent with what the jurist Paulus says of the general nature of exceptio: Exceptio est conditio quae modo eximit reum condemnationi, modo minuit damnationem, Dig. 44, 1, 22. Probably before the law of Marcus Aurelius the exceptio doli mali, when used in this case, had not the effect of diminishing the condemnation, and so did not admit the principle of set-off, but absolved the defendant entirely. Cf. Sohm, § 89.
As Gaius flourished under Marcus Aurelius, and makes no mention of his rescript, we must infer that it was issued after the publication of his Institutes. To be capable of set-off against one another the claims must be of the same kind—money against money, wheat against wheat—and so especially of res fungibiles—and these claims must be now due. But the defendant might set off obligatio naturalis, which was not enforceable by action against obligatio civilis of the plaintiff. Etiam quod natura debetur venit in compensationem, Dig. 16, 2, 6. But claims originally different in kind may be set off against one another, if they are reduced to a money value. And this principle enabled Justinian to extend Compensation to Real actions, Cod. 4, 31, 14; Inst. 4, 6, 30.
§§ 66-68. The balance for which the banker sued was not the balance (deductio) of a Personal account, but the balance of one of the Real accounts for corn, wine, oil, &c., into which the debtor’s total personal account was subdivided. The law courts, that is, took notice of the customary practice of the book-keepers, and a question naturally arose as to the extent to which a personal account could be subdivided. Deductio of argentarius and bonorum emptor, as is seen by the text, differs in principle from compensatio, and between the deductio of the two kinds of plaintiff, who had thus to sue, there are important differences, especially in regard to the effect of not complying with the requirement. The argentarius, as we are told, is bound to make the deduction in the intentio of the formula, and so, if he claims more than the correct balance, makes a plus petitio, thereby forfeiting his whole claim. But the deduction, by the bonorum emptor of the claims of the debtors of the estate against the insolvent, is only referred to in the condemnatio of the formula, and so as Gaius tells us here, and also in § 57, is not attended with the same danger.
§ 68. It was the duty of the Argentarius to keep the accounts of his customers: whereas the Bonorum emptor might well be ignorant of the transactions of the insolvent. This explains the greater rigour with which the Argentarius was treated.
A defendant was allowed to deduct his cross demand or independent debt from the demand of the plaintiff by the English courts of Equity, but not by the courts of Common law, until the Statutes 2 Geo. II, c. 22; 8 Geo. II, c. 24, introduced the plea of set-off into the courts of Common law.
§ 69. Quia tamen superius mentionem habuimus de actione, qua in peculium filiorum familias seruorumque agitur, opus est, ut de hac actione et de ceteris, quae eorundem nomine in parentes dominosue dari solent, diligentius admoneamus.
Inst. 4, 7, pr.
§ 70. Inprimis itaque si iussu patris dominiue negotium gestum erit, in solidum praetor actionem in patrem dominumue conparauit; et recte, quia qui ita negotium gerit, magis patris dominiue quam filii seruiue fidem sequitur.
Inst. 4, 7, 1.
§ 71. Eadem ratione conparauit duas alias actiones, exercitoriam et institoriam. tunc autem exercitoria locum habet, cum pater dominusue filium seruumue magistrum naui praeposuerit, et quid cum eo eius rei gratia cui praepositus fuerit [negotium] gestum erit. cum enim ea quoque res ex uoluntate patris dominiue contrahi uideatur, aequissimum esse uisum est in solidum actionem 〈in eum〉 dari. qui etiam, licet extraneum quisque magistrum naui praeposuerit siue seruum siue liberum, tamen ea praetoria actio in eum redditur. ideo autem exercitoria actio appellatur, quia exercitor uocatur is, ad quem cottidianus nauis quaestus peruenit. institoria uero formula tum locum habet, cum quis tabernae aut cuilibet negotiationi filium seruumue aut quemlibet extraneum siue seruum siue liberum praeposuerit, et quid cum eo eius rei gratia cui praepositus est contractum fuerit. ideo autem institoria uocatur, quia qui tabernae praeponitur institor appellatur. quae et ipsa formula in solidum est.
Inst. 4, 7, 2.
§ 72. Praeterea tributoria quoque actio in patrem dominumue constituta est, cum filius seruusue in peculiari merce sciente patre dominoue negotietur. nam si quid eius rei gratia cum eo contractum fuerit, ita praetor ius dicit, ut quidquid in his mercibus erit quodque inde receptum erit, id inter 〈patrem〉 dominum〈ue〉, si quid ei debebitur, et ceteros creditores pro rata portione distribuatur.
Inst. 4, 7, 3. (fere 21 uersus in C legi nequeunt)
§ 72 a. Praeterea introducta est actio de peculio deque eo, quod in rem domini uersum erit, ut, quamuis sine uoluntate domini negotium gestum erit, tamen siue quid in rem eius uersum fuerit, id totum praestare debeat, siue quid non sit in rem eius uersum, id eatenus praestare debeat, quatenus peculium patitur. In rem autem domini uersum intellegitur, quidquid necessario in rem eius impenderit seruus, ueluti si mutuatus pecuniam creditoribus eius soluerit aut aedificia ruentia fulserit aut familiae frumentum emerit uel etiam fundum aut quamlibet aliam rem necessariam mercatus erit. Itaque si ex decem ut puta aureis, quos seruus tuus a Titio mutuos accepit, creditori tuo quinque aureos soluerit, reliquos uero quinque quolibet modo consumpserit, pro quinque quidem in solidum damnari debes, pro ceteris uero quinque eatenus, quatenus in peculio sit: ex quo scilicet apparet, si toti decem aurei in rem tuam uersi fuerint, totos decem aureos Titium consequi posse. licet enim una est actio, qua de peculio deque eo quod in rem domini uersum sit agitur, tamen duas habet condemnationes. itaque iudex, apud quem de ea actione agitur, ante dispicere solet, an in rem domini uersum sit, nec aliter ad peculii aestimationem transit, quam si aut nihil in rem domini uersum intellegatur aut non totum.
Inst. 4, 7, 4.
§ 73.Cum autem quaeritur, quantum in peculio sit, ante deducitur, quod patri dominoue quique in eius potestate sit a filio seruoue debetur, et quod superest, hoc solum peculium esse intellegitur. aliquando tamen id, quod ei debet filius seruusue qui in potestate patris dominiue sit, non deducitur ex peculio, uelut si is cui debet in huius ipsius peculio sit.
Inst. l. c.
§ 74. Ceterum dubium non est, quin et si, qui iussu patris dominiue contraxit cuique exercitoria uel institoria formula conpetit, de peculio aut de in rem uerso agere possit. sed nemo tam stultus erit, ut qui aliqua illarum actionum sine dubio solidum consequi possit, in difficultatem se deducat probandi habere peculium eum cum quo contraxerit, exque eo peculio posse sibi satisfieri, uel id quod persequitur in rem patris dominiue uersum esse.
Inst. 4, 7, 5.
§ 74 a.Is quoque, cui tributoria actio conpetit, de peculio uel de in rem uerso agere potest. sed huic sane plerumque expedit hac potius actione uti quam tributoria. nam in tributoria eius solius peculii ratio habetur, quod in his mercibus est quibus negotiatur filius seruusue quodque inde receptum erit; at in actione 〈de peculio〉 peculii totius. et potest quisque tertia forte aut quarta uel etiam minore parte peculii negotiari, maximam uero partem peculii in aliis rebus habere; longe magis si potest adprobari, id quod 〈dederit is qui cum filio seruoue〉 contraxit in rem patris dominiue uersum esse, ad hanc actionem transire debet; nam, ut supra diximus, eadem formula et de peculio et de in rem uerso agitur.
Inst. l. c.
§ 69. As we have mentioned [§ 61, Inst. 4, 6, 36] the action brought against the Peculium of filiusfamilias and of slaves, we must explain more fully this and the other actions by which fathers and masters are sued on account of their sons or slaves.
§ 70. Firstly, if it was at the bidding of the father or master that the plaintiff contracted with the son or slave, the father or master may be sued for the whole amount of the debt contracted, and rightly so, for in this case the person with whom the contract is made looks rather to the credit of the father or master than to that of the son or slave.
§ 71. On the same principle the praetor grants two other actions, the actio exercitoria and institoria, one on account of a debt contracted by a ship-captain (magister), the other on account of a debt contracted by a manager of a shop or business (institor). The actio exercitoria lies against a father or master who has appointed a son or slave to be captain of a ship, to recover a debt incurred by the son or slave on account of the ship. As such a contract seems also to be made with the consent of the father or master, it has appeared most equitable that an action should be given to make him liable for the whole debt. But still further even if a man appoint another person’s slave or a freeman over his ship, he may nevertheless be sued by this praetorian action. The action is called Exercitoria because exercitor signifies a person who takes the daily profits of a ship. The formula Institoria is applicable in the case of a man appointing his son or slave or another person’s slave or a freeman to manage a shop or any business for him, should any debt be contracted by such person on account of that business. It is called Institoria because a person set over to manage a shop is called Institor, and the action is also brought to recover the whole amount of the debt.
§ 72. Besides the above, an action has also been established called Tributoria, against a father or a master of a slave, when their son or slave carries on some business with his Peculium with the knowledge of his father or master. For if any contracts are made with them on account of that business the praetor orders that whatever capital belongs to this business and any profits made in it shall be distributed between the father or master and the other creditors in proportion to their respective claims against the son or slave, and since the praetor permits the father or master to effect the distribution, this actio tributoria is provided to meet the case of a creditor complaining that he has received less than his share.
§ 72 a. There has also been instituted the action in respect of Peculium (de peculio) and of what has been converted to the profit of the father or master (de in rem verso), since notwithstanding the fact that a contract has been made without the consent of the father or master, yet if any portion has been converted to his profit, he ought to be altogether liable to that amount; or if no portion has been converted to his profit, he ought to be liable to the extent of the peculium. Conversion to his profit is understood to mean any necessary expenditure by his son or slave on his account, as borrowing money with which the son or slave pays his creditors, repair of his falling house, purchase of corn for his household of slaves (familia), purchase of an estate for him, or any other necessary. So if out of ten thousand sesterces which your slave borrowed of Titius he paid your creditor five thousand, and spent the remainder in some other way, you are liable for the whole of the five thousand, and for the remainder to the extent of the peculium. If the whole ten thousand was applied to your profit you are liable for the whole. And although the action in respect of Peculium and of conversion to profit is only one action, nevertheless it has two separate condemnations. Thus the judex first looks to see whether there has been a conversion to the profit of the father or master, and does not proceed to estimate the value of the peculium unless there was no such conversion or only a partial conversion.
§ 73. In ascertaining the amount of the peculium, deduction first is made of what the son or slave owes to the father or master or to a person in their power, and the residue only is regarded as peculium. Sometimes, however, what the son or slave owes to a person in the power of their superior is not deducted, for instance, if it is owed to a vicarius, that is to a slave belonging to the peculium of the son or slave.
§ 74. There is no doubt that both a creditor who has contracted at the bidding (jussu) of the father or master with a son or slave, and one who might sue, by exercitoria or institoria, may bring the action in respect of the peculium or of conversion to profit; but no one would be so foolish, who could recover the whole by one of the former actions, as to undertake the trouble of proving the existence of a peculium and that it was sufficient in amount to satisfy his claim, or that the transaction had been for the benefit of the father or master.
§ 74 a. A plaintiff who has the actio Tributoria may bring actio de peculio et in rem verso, and will generally find it expedient to do so; for actio Tributoria only relates to that portion of the peculium which consists of the trading capital and the profits of the business with which the son or slave traded, but other actions extend to the whole peculium; and a man may trade with only a third or fourth or less part of his peculium and have the greatest part of it invested in other concerns. A fortiori, if the plaintiff can prove that what he gave the son or slave in fulfilment of the contract was converted to the profit of the father or master, he should use this action, viz. de peculio et in rem verso, instead of the actio Tributoria; for, as I said above, the same formula lies both in respect of peculium and of what has been converted to uses.
§ 71. The term Institor includes any one set over a business—cuicumque negotio praepositus sit institor recte appellabitur—and so a banker (mensae praepositus), bailiff (agris colendis), foreman of a trade (mercaturis), bagman (sed etiam eos institores dicendos placuit, quibus vestiarii vel lintearii dant vestem circumferendam et distrahendam, quos vulgo circitores appellamus, Dig. 14, 3, 5), and any similar agent, of whatever age or sex (nam et plerique pueros puellasque tabernis praeponunt, Dig. 14, 3, 8).
It seems probable that the actio exercitoria and institoria were first granted by the praetor in the common case of the magister or institor being a son or slave of his employer, when a third party contracting with them would either have no remedy at all, or in respect of the filius familias one which would often be ineffective, and that they were afterwards extended to cases where the magister or institor were free persons and slaves, extraneous to the family of the employer.
The liability of the shipowner (exercitor) and of the master (dominus) on account of the contracts of the free captain (magister), and of the free manager, overseer, factor (institor) made within the scope of their employment, was the germ or first manifestation of the institution of contractual Agency, an institution that did not reach its complete development in Roman jurisprudence. For in this system an agent could not be a mere instrument of acquiring a contractual obligation for his employer, but was regarded as being himself a party to any contract he concluded on account of another. Thus the liability of the exercitor or dominus existed alongside or in addition to that of the magister or institor.
The term actiones adjecticiae qualitatis is used by modern commentators on Roman law to denote action by which this kind of liability was enforced, because of the Adjectio or additional clause which was introduced in their formula. By the civil law, as we have noticed, the inferior could not bind the superior, i.e. deteriorate his condition even with the consent of the superior, Savigny, § 113. But the Praetor besides the actio directa (empti, locati, &c.), which lay against the inferior, granted similar actions with a modified formula (actio empti de peculio, &c.) against the superior. They are six in number: Quod jussu, Exercitoria, Institoria, De peculio, De in rem verso, Tributoria. In the formula for De peculio, and De in rem verso (one formula with a double condemnatio), the adjectio was annexed to the condemnatio with a taxatio clause limiting the damages either to the peculium or to the amount of benefit which the defendant had derived from the transaction in question. Keller. Litis Contestatio, § 50 (cf. Lenel, p. 225), supposes that the following may have been its simplest form: Maevius judex esto. Quod Titius Seio filiofamilias mensam argenteam commodavit, qua de re agitur, quidquid ob eam rem Seium Titio dare facere oportet ex fide bona, ejus judex Gaium patrem, dumtaxat De peculio aut Quod in rem Gaii patris versum est, condemnato. In Quod jussu, Exercitoria, and Institoria, the Adjectio was apparently a part of the demonstratio, something corresponding to a demonstratio being required even where the action was one de certa pecunia or de certa re. Keller suggests the following formula: Quod jussu Gaii patris Seius filiusfamilias a Titio hominem emit, quidquid ob eam rem Seium Titio dare facere oportet ex fide bona, id Gaium patrem condemna. In all of them the agent alone was mentioned in the intentio, § 34 comm., the condemnation being directed against the person of the principal. Cf. Lenel, § 206. We have not sufficient data for determining the nature of the formula in Tributoria. The knowledge of the father, the inadequate distribution, the limitation of liability to the merx peculiaris, would seem to require an Adjectio to all three parts of the formula.
By the combination in one formula of the actions De peculio and De in rem verso, the superior could be successively sued on two grounds. If the actions had been distinct, then, as their intentio must have been identical, Litis Consumptio would have hindered their successive institution.
The agent and principal were correal debtors, at least when the agent was a free person, 3 § 110 comm., and against whichever an action was brought, the intentio averred the debt of the agent, so that on Litis Contestatio against either, the other was discharged by Res in judicium deducta. To remedy the injustice in such cases Justinian enacted that bringing an action against one correal debtor did not consume the right of action against the other. Cod. 8, 40, 28.
The actio de in rem verso, given against the paterfamilias or dominus, if a transaction entered into by a person in their power, though they had not authorized it, turned to their profit (si in rem ejus versum est), is based on the principle of the condictio, as e.g. of the condictio indebiti, that where the property of one person is increased without any adequate legal ground (sine causa) at the expense of another, the latter can claim restitution. The actions de peculio and tributoria, which had the peculium or the merx peculiaris of the son or slave for their object, show that while the peculium of the subordinate members of the family was legally the property of the head, it was recognized by the law for some purposes as if it were the de facto property of the son or slave.
Thus obligations between them and their superior, which were unenforceable by action (obligationes naturales), had to be taken into account by the judex in the distribution among creditors of the peculium, or of that part of it, which was appropriated to trade.
§ 75. Ex maleficiis filiorum familias seruorumque, ueluti si furtum fecerint aut iniuriam commiserint, noxales actiones proditae sunt, uti liceret patri dominoue aut litis aestimationem sufferre aut noxae dedere erat enim iniquum nequitiam eorum ultra ipsorum corpora parentibus dominisue damnosam esse.
Inst. 4, 8, pr.
§ 76. Constitutae sunt autem noxales actiones aut legibus aut edicto praetoris: legibus, uelut furti lege xii tabularum, damni iniuriae lege Aquilia; edicto praetoris, uelut iniuriarum et ui bonorum raptorum.
Inst. 4, 8, 4.
§ 77. Omnes autem noxales actiones caput secuntur. nam si filius tuus seruusue noxam commiserit, quamdiu in tua potestate est, tecum est actio; si in alterius potestatem peruenerit, cum illo incipit actio esse; si sui iuris coeperit esse, directa actio cum ipso est, et noxae deditio extinguitur. ex diuerso quoque directa actio noxalis esse incipit. nam si pater familias noxam commiserit, et is se in adrogationem tibi dederit aut seruus tuus esse coeperit, 〈quod〉 quibusdam casibus accidere primo commentario tradidimus, incipit tecum noxalis actio esse quae ante directa fuit.
Inst. 4, 8, 5.
§ 78. Sed si filius patri aut seruus domino noxam commiserit, nulla actio nascitur; nulla enim omnino inter me et eum qui in potestate mea est obligatio nasci potest. ideoque etsi in alienam potestatem peruenerit aut sui iuris esse coeperit, neque cum ipso neque cum eo cuius nunc in potestate est agi potest. unde quaeritur, si alienus seruus filiusue noxam commiserit mihi, et is postea in mea esse coeperit potestate, utrum intercidat actio an quiescat. nostri praeceptores intercidere putant, quia in eum casum deducta sit, in quo consistere non potuerit, ideoque, licet exierit de mea potestate, agere me non posse; diuersae scholae auctores, quamdiu in mea potestate sit, quiescere actionem putant, quia ipse mecum agere non possum, cum uero exierit de mea potestate, tunc eam resuscitari.
Inst. 4, 8, 6.
§ 79. Cum autem filius familias ex noxali causa mancipio datur, diuersae scholae auctores putant ter eum mancipio dari debere, quia lege xii tabularum cautum sit, 〈ne aliter filius de potestate patris〉 exeat, quam si ter fuerit mancipatus; Sabinus et Cassius ceterique nostrae scholae auctores sufficere unam mancipationem crediderunt, et illas tres legisxii tabularum ad uoluntarias mancipationes pertinere.
§ 80. Haec ita de his personis quae in potestate 〈sunt〉, siue ex contra|ctu siue ex maleficio earum —. quod uero ad eas | personas quae in manu mancipioue sunt 〈—〉, ita ius dicitur, ut cum ex contractu earum agatur, nisi ab eo cuius iuri subiectae sint in solidum defendantur, bona quae earum futura forent, si eius iuri subiectae non essent, ueneant. sed cum rescissa capitis deminutione cum iis imperio continenti iudicio agitur, —
(13 uersus in C legi nequeunt) —|—|—NAxii tabularum —|NA
(7 uersus in C legi nequeunt)—
§ 81. — Quid ergo est? — diximus — non permissum fuerit ei mortuos homines dedere, tamen etsi quis eum dederit qui fato suo uita excesserit, aeque liberatur.
§ 75. For a delict, such as theft or outrage, committed by a son or slave, a noxal action lies against the father or master, who has the option of either paying the damages assessed or surrendering the delinquent. For it is not just that the misdeed of a son or slave should involve the father or master in any detriment beyond the loss of his body.
§ 76. Noxal actions were introduced partly by statute, partly by the edict of the praetor: by statute, for instance the action for theft by the enactment of the Twelve Tables, and the action for injury to property by the lex Aquilia; by the edict, for instance theaction for outrage (injuriarum) and the action for rapine.
§ 77. All noxal actions are said to follow the person of the delinquent. Accordingly if your son or slave has done a wrong while he is in your power, an action lies against you; if he falls under the potestas, patria or dominica, of another person, an action lies against his new superior: if he becomes his own master (sui juris), a direct action lies against the delinquent himself, and the noxal action is extinguished. Conversely, a direct action may change into a noxal one: thus if a paterfamilias has committed a delict, and then has made himself your son by adrogatio or having been a free man has become your slave, as I showed in the first book might happen in certain circumstances, a noxal action lies against you in place of the direct action which formerly lay against the delinquent.
§ 78. But no action lies for an offence by a son or slave committed against his father or master; for between me and a person in my power no obligation is possible; and, consequently, if he passes into the power of another, or becomes his own master (sui juris), neither he himself in the one case nor the person in whose power he now is in the other can be sued. Hence it has been asked whether, if another man’s son or slave has wronged me and subsequently passes into my power, the action is in consequence extinguished, or is only in abeyance. Our school maintains that the action is extinguished, because a state of circumstances has arisen in which an action is impossible, and therefore if the delinquent pass again out of my power I have no action. The other school maintains that while he is in my power the action is only in abeyance, because I cannot bring an action against myself, but that it revives when he passes out of my power.
§ 79. When a filiusfamilias is conveyed by mancipation to the injured party in a noxal action, the other school hold that he ought to be mancipated three times, because the law of the Twelve Tables provides that a son cannot pass out of the power of the father unless he is three times mancipated. Sabinus and Cassius and the other authorities of my school hold that a single mancipation is sufficient, and suppose that the three conveyances of the Twelve Tables are only required in voluntary mancipations.
§ 80. So much for the contracts and delicts of persons under the power of a father or master. As to persons subject to manus or mancipium, when they are sued for contracts, unless they are defended against the whole damages by the superior to whom they are subject, the goods which would have belonged to them but for their subjection are ordered by the praetor to be sold. But when their change of status is supposed to be rescinded and an action is brought resting on the praetor’s executive supremacy (judicium quod imperio continetur). . . .
§ 81. But though I said that the surrender of a dead man was not allowed yet if the delinquent died a natural death and the body is surrendered by the person sued on his account in a noxal action, the judgment is satisfied.
§ 77. Gaius explained the various modes by which a man might lose his freedom, 1 § 160. A person who fraudulently allowed himself to be sold with the view of sharing the purchase money, Inst. 1, 3, 4, a freedman ungrateful to his patron, Inst. 1, 16, 1, a woman who persisted in intercourse with a slave without the permission of the master, all forfeited their freedom, the last by a Senatusconsultum Claudianum which was repealed by Justinian, Inst. 3, 12, 1. In the law mentioned by Gaius, l. c., a man who failed to register himself at the census (incensus) lost his freedom; and by the Twelve Tables the fur manifestus and insolvent debtor were assigned (addicti) to the injured party, though, apparently, 3 § 189, not reduced to slavery.
§ 78. Justinian decides in favour of the Sabinians, Inst. 4, 8, 6, that the action for the delict of a slave is extinguished, without possibility of future revival, when the delinquent slave comes into the power of the person aggrieved.
§§ 80, 81. As to the probable contents of the lacuna, cf. Krueger and Studemund’s Notes. The death of a delinquent slave before litis contestatio extinguished the liability of the master. The Autun fragments of interpretation of Gaius, which have recently been discovered (see Krueger’s Edition of these Fragments in Krueger and Studemund’s Gaius, 4th ed., App. p. xl, &c.), contain the following:
Sed interest, utrum serui filiiue nomine noxalis actio propo[natur an] animalium; nam si serui filiiue nomine condemnatus fuit do[minus uel] pater poe*** in noxam dare etiam mortuum condemn—noxali actione potest seruum etiam mortuum in noxam dare. [Et non solum si] totum corpus det, liberatur, sed etiam si partem aliquam corporis. denique tr[actatur de] capillis et unguibus, an partes corporis sint. quidam enim dicunt— [—]|NAtationi — foris posita animal m[ortuum]| dedi non potest.
Quae ratio est, ut serui mortui etiam dedantur? uoluere [—] | —NA imponere seruis uel filiis, ut delinquentes semet t[—] |NA uel potestatem dominorum ***. namque hoc uolebant liberari a dom[—]|NAuus delinquebat, non poterat dare in usum aut reddere, dabat [—no]|xam —. Ergo cum praetor corpus te dedere dom[—] |NA parentem putes — iure uti t[— do]|mino uel parenti etiam occidere eum et mortuum dedere d[—] | —NA patria potestas potest n[—] |NA cum patris potestas talis est, ut habeat uitae et necis pot[estatem]. De filio hoc tractari crudele est, sed ********* non est **n post r[—|NAdere, sed est hoc *** iure aut *** quod praebebit lex xii tabularum. sed deferre hoc [—] | debet propter calumniam.
Ergo ideo interest mortuum dedere [—]|NAter animalibus nec est * nisi *****ctio** ponis his quae ratione [carent].
It would seem from the above that the dead body of a delinquent son or slave, or part of it, might be surrendered in satisfaction to the plaintiff, but not that of an animal which had caused injury to another (pauperies), though it is a question whether the noxal liability would continue if the son or slave were killed by the head of the household in the exercise of the jus vitae necisque. We know that the master of a slave did not escape such liability by his voluntary manumission (on the primitive conception of noxal liability, cf. Holmes, Common Law, chap. I).
As the Romans became more civilized the noxal surrender of a son or daughter by the parent became repugnant to public feelings, and Justinian (Inst. 4, 8, 7) speaks of it as a thing of the past.
Mischief (pauperies) occasioned by an animal might by a law of the Twelve Tables be atoned for by noxae deditio, Inst. 4, 9, and is probably the subject of the lacuna in the text.
§ 82. Nunc admonendi sumus agere nos aut nostro nomine aut alieno, ueluti cognitorio, procuratorio, tutorio, curatorio, cum olim, quo tempore legis actiones in usu fuissent, alieno nomine agere non liceret, praeterquam ex certis causis.
Inst. 4, 10, pr.
§ 83. Cognitor autem certis uerbis in litem coram aduersario substituitur. nam actor ita cognitorem dat qvod ego a te uerbi gratia fvndvm peto, in eam rem l. titivm tibi cognitorem do; aduersarius ita qvia tv a me fvndvm petis, in eam 〈rem〉 tibi p. mevivm cognitorem do. potest ut actor ita dicat qvod ego tecvm agere volo, in eam rem cognitorem do, aduersarius ita qvia tv mecvm agere vis, in eam rem cognitorem do. nec interest, praesens an absens cognitor detur; sed si absens datus fuerit, cognitor ita erit, si cognouerit et susceperit officium cognitoris.
§ 84. Procurator uero nullis certis uerbis in litem substituitur, sed ex solo mandato et absente et ignorante aduersario constituitur. quin etiam sunt qui putant eum quoque procuratorem uideri, cui non sit mandatum, si modo bona fide accedat ad negotium et caueat ratam rem dominum habiturum; quamquam et ille cui mandatum 〈est〉 plerumque satisdare debet, quia saepe mandatum initio litis in obscuro est et postea apud iudicem ostenditur.
Inst. 4, 10, 1.
§ 85. Tutores autem et curatores quemadmodum constituantur, primo commentario rettulimus.
Inst. 4, 10, 2.
§ 86. Qui autem alieno nomine mine agit, intentionem quidem ex persona domini sumit, condemnationem autem in suam personam conuertit. nam si uerbi gratia L. Titius 〈pro〉 P. Meuio agat, ita formula concipitur si paret n. negidivm p. mevio sestertivm x milia dare oportere, ivdex n. negidivm l. titio sestertivm x milia condemna. si non paret, absolve; in rem quoque si agat, intendit p. mevii rem esse ex ivre qviritivm, et condemnationem in suam personam conuertit.
§ 87. Ab aduersarii quoque parte si interueniat aliquis cum quo actio constituitur, intenditur dominum dare oportere, condemnatio autem in eius personam conuertitur qui iudicium accipit; sed cum in rem agitur, nihil 〈in〉 intentione facit eius persona cum quo agitur, siue suo nomine siue alieno aliquis iudicio interueniat; tantum enim intenditur rem actoris esse.
§ 82. A man may sue either on his own account or on account of another as his cognitor, procurator, guardian (tutor), or curator, whereas in the days of statute-process a man could only sue on account of another in certain cases.
§ 83. A cognitor for a cause is appointed by a set form of words in the presence of the adversary. The form in which the plaintiff appoints a cognitor is the following: ‘Whereas I sue you for, say, an estate, in that matter I appoint Lucius Titius as my cognitor;’ the defendant thus: ‘Whereas you sue me for an estate, in that matter I appoint Publius Maevius as my cognitor.’ Or the plaintiff may use the words: ‘Whereas I intend to sue you, in that matter I appoint Lucius Titius as my cognitor;’ and the defendant these: ‘Whereas you intend to sue me, in that matter I appoint Publius Maevius as my cognitor.’ It is immaterial whether the person appointed cognitor is present or absent; but if an absent person is appointed, he is only cognitor if he consents and undertakes the office.
§ 84. A procurator is substituted in a suit for the principal without using any particular form of words, but simply by an informal mandate, and even in the absence and without the knowledge of the other party to the action. According to the opinion of some, a person may even become a procurator without a mandate if he undertakes the office in good faith and engages that the principal will ratify his proceeding. Although he who is acting under a mandate is also as a rule bound to give this security, the fact that he has a mandate being often concealed in the initial stage of the suit, and only coming to light subsequently when the parties are before the judge.
§ 85. How guardians and curators are appointed has been explained in the first book.
§ 86. He who sues on account of another names the principal in the intentio and himself in the condemnatio. If, for example, Lucius Titius sues for Publius Mevius, the formula runs thus: ‘If it be proved that Numerius Negidius ought to pay to Publius Mevius ten thousand sesterces, do thou, judex, condemn Numerius Negidius to pay to Lucius Titius ten thousand sesterces; if it be not proved, absolve him.’ In a real action the thing is affirmed in the intentio to be the property of Publius Mevius by the law of the Quirites, and the representative is named in the condemnatio.
§ 87. When the defendant is represented by a cognitor or procurator in a personal action the principal is named in the intentio, and his representative in the condemnatio. In a real action neither the principal defendant nor his representative is named in the intentio, which only affirms that the thing belongs to the plaintiff.
§ 82. If there is a genuine antithesis between agere suo nomine and alieno nomine, the procuratorium, tutorium, &c., nomen, which is the alienum nomen with which the procurator or guardian sues, must mean the name, not of the procurator or guardian, but of the principal or ward. When a man sues suo nomine he uses his own name in the intentio; therefore it might at first sight be supposed, that when a man sues procuratorio nomine he would use the procuratorium nomen in the intentio: the name inserted in the intentio by a procurator is of course however not the name of the procurator but that of the principal, the name of the procurator being only inserted in the condemnatio, § 36. But Gaius is evidently using the word ‘agere’ here, not for the claim as set out in the intentio, but in a general sense. Statute-process was incapable of representation or procuration (alieno nomine agere), because it could not be modified for this purpose by the praetor; that is to say, it could not as in the formulary procedure frame a condemnatio, in which the procurator’s name was substituted for that of the principal.
Justinian enumerates the cases in which representation was permitted in statute-process: Cum olim in usu fuisset alterius nomine agere non posse, nisi pro populo, pro libertate, pro tutela: praeterea lege Hostilia permissum est furti agere eorum nomine, qui apud hostes essent aut rei publicae causa abessent quive in eorum cujus tutela essent. et quia hoc non minimam incommoditatem habebat, quod alieno nomine neque agere neque excipere actionem licebat, coeperunt homines per procuratores litigare, Inst. 4, 10, pr. Eam popularem actionem dicimus quae suum jus populo tuetur, Dig. 47, 23, 1. A popularis actio was one brought by a common informer to recover a penalty. The informer enforced, not a private but a public right, that is, sued as the procurator of the people; and therefore an infamis, as he was disabled from being procurator, was incompetent to prosecute in such an action. To public actions and actions by an adsertor libertatis (see 1 § 17, comm.) Justinian adds, as maintainable by a representative under the old jurisprudence, actions on behalf of a ward. We have already mentioned, 1 §§ 142-145, comm., that until the ward attained the age of seven, when he ceased to be infans, the guardian had to bring actions for the ward; after the age of seven the ward maintained his own actions with the sanction of the guardian, though sometimes the latter did so on his behalf.
§ 84. A person who without a mandate undertook the defence of an absent neighbour was called negotiorum gestor (Inst. 3, 27, 1) or defensor, or procurator voluntarius. The employment of a cognitor, from the necessity of appointing him in the presence of the adversary and by a certain formula, was discontinued as inconvenient, and Justinian only speaks of the procurator. Bethmann-Hollweg, vol. 3, appendix 1, quotes from Symmachus the report of a case in which the defendant objected to a procurator (exceptio invalidae procurationis), and the plaintiff proved his appointment by production of a document from the praetor’s record office (ex actis praetoriis) at a late stage of judicial proceedings. A procurator thus appointed by protocol was called procurator praesentis, or apud acta factus, and was to some extent in a similar position to that of a cognitor. Keller, Civil Process, § 52.
§ 88. Videamus nunc quibus ex causis is cum quo agitur uel hic qui agit cogatur satisdare.
Inst. 4, 11, pr.
§ 89. Igitur si uerbi gratia in rem tecum agam, satis mihi dare debes; aequum enim uisum est 〈te〉 ideo quod interea tibi rem, quae an ad te pertineat dubium est, possidere conceditur, cum satisdatione cauere, ut si uictus sis nec rem ipsam restituas nec litis aestimationem sufferas, sit mihi potestas aut tecum agendi aut cum sponsoribus tuis.
Inst. l. c.
§ 90. Multoque magis debes satisdare mihi, si alieno nomine iudicium accipias.
Inst. l. c.
§ 91. Ceterum cum in rem actio duplex sit, aut enim per formulam petitoriam agitur aut per sponsionem, siquidem per formulam petitoriam agitur, illa stipulatio locum habet quae appellatur ivdicatvm solvi, si uero per sponsionem, illa quae appellatur pro praede litis et vindiciarvm.
Inst. l. c.
§ 92. Petitoria autem formula haec est, qua actor intendit rem svam esse.
§ 93. Per sponsionem uero hoc modo agimus: prouocamus aduersarium tali sponsione si homo qvo de agitvr ex ivre qviritivm mevs est, sestertios xxv nvmos dare spondes?; deinde formulam edimus; qua intendimus sponsionis summam nobis dari oportere; qua formula ita demum uincimus, si probauerimus rem nostram esse.
§ 94. Non tamen haec summa sponsionis exigitur. non enim poenalis est, sed praeiudicialis, et propter hoc solum fit, ut per eam de re iudicetur. unde etiam is cum quo agitur non restipulatur. ideo autem appellata est pro praede litis vindiciarvm stipulatio, quia in locum praedium successit, qui olim, cum lege agebatur, pro lite et uindiciis, id est pro re et fructibus, a possessore petitori dabantur.
§ 95 Ceterum si apud centumuiros agitur, summam sponsionis non per formulam petimus, sed per legis actionem; sacramento enim reum prouocamus; eaque sponsio sestertium cxxv nummum fit scilicet propter legem Crepereiam.
§ 96. Ipse autem qui in rem agit, si suo nomine agat, satis non dat.
Inst. l. c.
§ 97. Ac nec si per cognitorem quidem agatur, ulla satisdatio uel ab ipso uel a domino desideratur. cum enim certis et quasi sollemnibus uerbis in locum domini substituatur cognitor, merito domini loco habetur.
Inst. l. c.
§ 98. Procurator uero si agat, satisdare iubetur ratam rem dominum habiturum; periculum enim est, ne iterum dominus de eadem re experiatur. quod periculum 〈non〉 interuenit, si per cognitorem actum fuerit, quia de qua re quisque per cognitorem egerit, de ea non magis amplius actionem habet, quam si ipse egerit.
Inst. l. c.
§ 99. Tutores et curatores eo modo quo et procuratores satisdare debere uerba edicti faciunt; sed aliquando illis satisdatio remittitur.
Inst. l. c.
§ 100. Haec ita, si in rem agatur; si uero in personam, ab actoris quidem parte quando satisdari debeat quaerentes, eadem repetem us quae diximus in actione qua in rem agitur.
Inst. l. c. 1.
§ 101. Ab eius uero parte cum quo agitur, siquidem alieno nomine aliquis interueniat, omni modo satisdari debet, quia nemo alienae rei sine satisdatione defensor idoneus intellegitur. sed siquidem cum cognitore agatur, dominus satisdare iubetur; si uero cum procuratore, ipse procurator. idem et de tutore et de curatore iuris est.
Inst. 4, 11, 1.
§ 102. Quodsi proprio nomine aliquis iudicium accipiat in personam, certis ex causis satisdare solet, quas ipse praetor significat. quarum satisdationum duplex causa est: nam aut propter genus actionis satisdatur, aut propter personam, quia suspecta sit; propter genus actionis, ueluti iudicati depensiue aut cum de moribus mulieris agitur; propter personam, ueluti si cum eo agitur qui decoxerit, cuiusue bona 〈a〉 creditoribus possessa proscriptaue sunt, siue cum eo herede agatur quem praetor suspectum aestimauerit.
Inst. l. c.
§ 88. We next inquire under what circumstances the plaintiff or defendant is required to give security.
§ 89. If I sue you in a real action you must give me security. For as you are permitted during the suit to retain possession of a thing to which your title is doubtful, it is fair that you should give me security with sureties so that if judgment goes against you and you refuse to restore the thing or to pay its value I may have the power of proceeding against you or your sponsors.
§ 90. And there is all the more reason that you should give security if you are only undertaking the action as the representative of another.
§ 91. A real action is either commenced by a petitory formula or by a sponsio: if the plaintiff proceeds by petitory formula, recourse is had to the stipulation known as security for satisfaction of judgment; if he proceeds by sponsio, the stipulation employed is known as security for the thing in dispute and for mesne profits.
§ 92. The Intentio of a petitory formula containing the assertion that the thing belongs to the plaintiff.
§ 93. But in a proceeding by sponsio we challenge the other party to such a wager as follows: ‘If the slave in question belongs to me by the law of the Quirites, do you promise to pay me twenty-five sesterces?’ and we then deliver a formula in which we sue for the sum named in the wager, but we only obtain judgment by this formula if we prove that the thing belongs to us.
§ 94. But the sum named in the wager in this case is not exacted, for it is not really penal, but prejudicial, and is used merely as a device for instituting a trial of ownership. Hence, the defendant does not enter into a counter stipulation with the plaintiff. But the stipulation in the place of security for the thing in dispute and for mesne profits (pro praede litis et vindiciarum) is so named because it was substituted for personal sureties (praedes); for in the days of statute-process restitution of the thing in dispute and the mesne profits was secured to the claimant (petitor) by the possessor giving him such sureties.
§ 95. When, however, the case is tried in the centumviral court the sum of the wager is not sued for by formula but by statute-process. For then we challenge the defendant by sacramentum, and a sponsio of a hundred and twenty-five sesterces is entered into by virtue of the lex Crepereia.
§ 96. But if a plaintiff in a real action sues in his own name he gives no security.
§ 97. And even if a cognitor sues, no security is required either from him or from his principal, for the cognitor being appointed by a fixed and, as it were, solemn form of words in the place of the principal, he is properly identified with the principal.
§ 98. But if a procurator sues, he is required to give security for the ratification of his proceedings by his principal, as otherwise the principal might sue again on the same claim, which he cannot do after suing by a cognitor on account of the acts of the latter being regarded as his own.
§ 99. Guardians (tutores) and curators are required by the edict to give the same security as procurators, but are sometimes excused.
§ 100. So much for real actions. In personal actions the plaintiff is governed by the same rules in respect of giving security as in real actions.
§ 101. As regards the defendant, if another person intervenes for him in the action, security must always be given, for no one is considered to be a sufficient defender of another without security; but in a suit against a cognitor it is the principal who gives security, while in a suit against a procurator it is the procurator who gives it; and this same rule applies to guardians and curators.
§ 102. But if a defendant accepts process in his own name in a personal action, he only gives security in certain cases named in the edict. These cases are of two kinds, depending either on the nature of the action or on the suspicious character of the defendant. The nature of the action is the reason in a suit against a judgment debtor, or a principal indebted to his surety, or in an action (for dower) in which the conduct of the wife is in question. The suspicious character of the defendant is the reason if he has already made away with his property, or if his goods have been possessed or proscribed for sale by his creditors, or if an heir is sued whom the praetor looks on as a suspect.
§ 88. In a real action the defendant was required to give security that he would satisfy the judgment (satisdatio judicatum solvi); in a personal, with a few exceptions, if he appeared in his own cause, he was not required. Justinian relieved him of the necessity of giving such security in real actions. But a defendant, whether in a real or personal action, might be compelled either to promise or to give security that he would appear and defend the action till it was concluded (cautio judicio sisti). Inst. 4, 11, 2.
In the time of Gaius, if the defendant in a real action refused to give security judicatum solvi, the possession was transferred from him to the plaintiff by the interdict Quem fundum, Quam hereditatem, or Quem usumfructum, as the case might be, and he was reduced at least for some purposes to the position of plaintiff; cf. Ulp. Inst. Fragm. Vind. in Krueger, Jus Antejus. 2, 159, ‘Some interdicts may either initiate or restore possession, as the interdicts Quem fundum and Quam hereditatem. For if I sue a person for land or an heritage, and he refuses to give security, he is compelled to transfer the possession to me whether I never before had possession, or once had and afterwards lost possession’; and Ulpian, Fragmenta Vaticana, 92, ‘The plaintiff has a right to security in a real action for a servitude as well as for a corporal thing, and therefore, analogous to the interdict, Quem fundum, there is an interdict, Quem usumfructum, for the transfer of a usufruct’; cf. also Paulus, Receptae Sententiae, 1, 11, 1, ‘In a demand of a heritage, security must be given, or else possession is transferred to the demandant. If, however, the demandant refuse to give security, possession remains with the possessor, for in equal circumstances law favours the possessor.’ Cf. Lenel, § 248. 2, n. q.
The same principle may perhaps also have applied to Praedial servitudes. If A asserted against B the Urban servitude altius non tollendi (si ageretur, jus vicino non esse, aedes altius tollere), i. e. sought by actio Confessoria of jus altius Non tollendi (with an intentio, perhaps, in the following form: Si paret jus Numerio Negidio non esse aedes altius tollendi invito Aulo Agerio) to restrain B from exercising the indefinite powers of ownership by raising the height of his house, B might decline to defend the action and thus avoid a judicial decision as to the existence of the servitude; but as a penalty for this he would not be allowed afterwards to exercise his alleged right without first proving before a tribunal the nullity of A’s claim; proving, that is, either that A never had such a servitude over his house, or that he, B, had extinguished it by acquisition of the counterservitude (libertatis usucapio). That is to say, being originally in possession, or rather quasi-possession of the jus altius tollendi (for servitudes are not, strictly speaking, subjects of possession), B was deprived of this position; and, if he afterwards wished to exercise his right of building, had first to recover possession of it as plaintiff in a suit: i. e. by actio Negatoria of jus Non altius tollendi, if he denied that A as dominans ever enjoyed such a servitude, or by actio Confessoria of jus altius tollendi, if he claimed as serviens to have reacquired the freedom of his house by usucapio libertatis.
The penalty would only consist in an inversion of the order of proof: B as plaintiff would have to prove his own proprietorship before A as defendant was put to prove the existence of the servitude: whereas, if A had been plaintiff, A would have had to begin by proving the existence of the servitude before B was put to his answer.
So vice versa: if B had originally wished to prove his right to build as plaintiff, either in an actio Negatoria of jus Non altius tollendi, or in an actio Confessoria of jus altius tollendi, and if A had declined to defend either action by giving securities, &c. in the course prescribed by law; A would have been restrained from afterwards interfering with B except as plaintiff in a suit in which B was made defendant, Dig. 39, 1, 15. Cf. 2, §§ 1-14, §§ 28-39, comm., §§ 1-9, comm.
At a later period, as we have seen, the cautio judicatum solvi was not required from the defendant in a real action, and translatio possessionis might be averted if the defendant merely gave the cautio judicio sisti.
The sum staked in the praedes sacramenti, which Gaius had told us, § 14, was a thousand or five hundred asses, he now, § 95, defines as one hundred and twenty-five sesterces.
The explanation of this is as follows: Originally the sestertius, as the name implies, was two asses and a half, and the denarius ten asses. Both the sestertius and the denarius were silver coins. In the Second Punic War, about b. c. 217, in consequence of the insolvency of the State, the denarius was made equal to sixteen asses and the sestertius remained, as before, one fourth of the denarius, that is, became equal to four asses. One hundred and twenty-five sesterces, therefore, were equal to five hundred asses. This change was brought about by the lex Crepereia.
The Sponsio praejudicialis, though giving rise to a personal action in form, might in effect be a means of deciding a real action. It resembles somewhat the Feigned Issue or issue in a fictitious action on a wager, whereby the Court of Chancery, before it had the power of summoning a jury, might refer an issue of fact to trial by jury, or the parties in a court of law by consent or by direction of some act of parliament might determine some disputed right without the formality of a regular action, thereby saving much time and expense; see Blackstone’s Commentaries. In the Sponsio poenalis there was both a sponsio and restipulatio, that is, both parties forfeited the penal sum if they lost the action, and the penal sum might be serious, in an action de pecunia certa credita being one third, and in an action de pecunia constituta being one half of the sum in dispute, § 171.
In the actio Sacramenti in rem and per Sponsionem two different stipulations must be distinguished. In the Sacramentum there was (A) the praedes sacramenti, and (B) the praedes litis et vindiciarum, § 16; in the actio in rem per Sponsionem there was (A) the sponsio praejudicialis, and (B) the satisdatio pro praede litis et vindiciarum. In the formula petitoria there was only one stipulation, (B) the satisdatio judicatum solvi, corresponding to the second stipulation in the Sacramentum and Sponsio. §§ 91, 93.
In the interdicts Uti possidetis and Utrubi, each party being originally both plaintiff and defendant, there were (A) two sponsiones and two restipulationes for a penal sum, on which stipulations the principal issue was founded: there was no security (B) exactly corresponding to the Pro praede litis et vindiciarum, but the highest bidder at the fructus licitatio must either enter into a fructuaria stipulatio, § 16, which in the event of his failing in the action he must forfeit, besides having by the judicium Cascellianum or Secutorium, or action for giving effect to the main decision, to hand over the possession and mesne profits to the successful party; or as an alternative, if he refuses to enter into the fructuaria stipulatio, he is subject to the judicium fructuarium, by which he is required to give the satisdatio judicatum solvi. §§ 166-169.
§ 101. As a plaintiff’s procurator could not bring to trial and consume the plaintiff’s right, he had to give cautio rem ratam dominum habiturum: and as a defendant’s procurator could not bring to trial the defendant’s obligation, he had to give security judicatum solvi.
§ 102. The husband sued for the dower of his divorced wife might retain a portion on various grounds, of which Immorality was one, Ulpian, Fragm., 6, 9, 11. ‘Retentions in the restitution of dower are on account of children, immorality, expenditure, donation, articles purloined by the wife. On account of children, if the fault of the wife, or the father in whose power she is, occasioned the divorce. Then a sixth is retained on account of each child, but not more than three sixths altogether. For gross immorality a sixth is retained, for slight immorality an eighth. Only adultery is gross immorality.’ (Cf. § 44, comm.)
Besides the forfeiture of vadimonium, fraudulent absconding to avoid the summons to appear was an act of bankruptcy, or motive for missio in possessionem. Praetor ait: Qui fraudationis causa latitabit, si boni viri arbitratu non defendetur, ejus bona possideri vendique jubebo, Dig. 42, 4, 7, 1. ‘If a debtor fraudulently abscond, and no sufficient representative defends him, I will order his goods to be possessed and sold.’
A heres might, on cause shown to the praetor, immediately after his entry on the succession, be required by the creditors to give security for the payment of their claims, with the alternative of seizure and sale, though only on the ground of his being unlikely to be able to satisfy them, § 102. But after a lapse of time it was necessary to prove not only poverty, but fraudulent behaviour on the part of the heres, Dig. 42, 5, 31.
The stipulatio judicatum solvi contained three clauses: Judicatum solvi stipulatio tres clausulas in unum collatas habet: de re judicata, de re defendenda, de dolo malo, Dig. 46, 7, 6. ‘The stipulation judicatum solvi is composed of three clauses, for satisfaction of the judgment, for defending the action, and for fraud.’ The action must be defended ‘to the satisfaction of a reasonable man,’ which was interpreted to mean that, if a defensor appeared before the judex, the second clause was not satisfied unless the defensor was prepared to give further security judicatum solvi, Dig. 46, 7, 5, 3. ‘A defensor may prevent the stipulation taking effect if he defends “to the satisfaction of an arbitrator,” that is, with adequate security.’ Cf. Roby, 2. p. 384.
Justinian as a general rule relieved the defendant in any action who appeared in his own person from the first and third clauses of the security judicatum solvi, but not from the second. The vadimonium or cautio judicio sistendi, which originally, it seems, only referred to adjourned appearances in jure, was at this period extended to the judicia, and bound the defendant to appear before the judex and remain to the end of the trial. If, then, in consequence of an adjournment in jure, there had been a vadimonium between the parties, no further stipulation would be necessary; otherwise the defendant would have had to enter into the undertaking that formed the second clause of the stipulation judicatum solvi, Inst. 4, 11, 2. ‘This is not the present rule. The defendant now is not required either in a real or personal action, if he appear in person, to give security for satisfaction of the judgment, but only for his own personal presence and continuance in court to the end of the trial.’
The procurator of the plaintiff appointed before the judex or in the record office of the magistrate by memorandum (insinuatio) in the register of his public proceedings (apud acta) was assimilated to the cognitor whom he superseded, and was not required to give security; otherwise he had to give security ratam rem dominum habiturum, because Litis Contestatio by him operated no consumption.
The procurator of the defendant might either have himself to give security, or his principal, as fidejussor of his procurator, gave security judicatum solvi in his place, as in the case of the cognitor, which might include a mortgage (hypotheca) of all his property. A defensor (whether authorized or unauthorized) of the defendant must find security judicatum solvi, because Litis Contestatio by him operated consumption, § 101.
§ 103. Omnia autem iudicia aut legitimo iure consistunt aut imperio continentur.
§ 104. Legitima sunt iudicia quae in urbe Roma uel intra primum urbis Romae miliarium inter omnes ciues Romanos sub uno iudice accipiuntur; eaque 〈e〉 lege Iulia iudiciaria, nisi in anno et sex mensibus iudicata fuerint, expirant. et hoc est quod uulgo dicitur e lege Iulia litem anno et sex mensibus mori.
§ 105. Imperio uero continentur recuperatoria et quae sub uno iudice accipiuntur interueniente peregrini persona iudicis aut litigatoris. in eadem causa sunt, quaecumque extra primum urbis Romae miliarium tam inter ciues Romanos quam inter peregrinos accipiuntur. ideo autem imperio contineri iudicia dicuntur, quia tamdiu ualent, quamdiu is qui ea praecepit imperium habebit.
§ 106. Et siquidem imperio continenti iudicio actum fuerit, siue in rem siue in personam, siue ea formula quae in factum concepta est, siue ea quae in ius habet intentionem, postea nihilo minus ipso iure de eadem re agi potest; et ideo necessaria est exceptio rei iudicatae uel in iudicium deductae.
§ 107.Si uero legitimo iudicio in personam actum sit ea formula quae iuris ciuilis habet intentionem, postea ipso iure de eadem re agi non potest, et ob id exceptio superuacua est; si uero uel in rem uel in factum actum fuerit, ipso iure nihilo minus postea agi potest, et ob id exceptio necessaria est rei iudicatae uel in iudicium deductae.
§ 108. Alia causa fuit olim legis actionum: nam qua de re actum semel erat, de ea postea ipso iure agi non poterat; nec omnino ita, ut nunc, usus erat illis temporibus exceptionum.
§ 109. Ceterum potest ex lege quidem esse iudicium, sed legitimum non esse; et contra ex lege non esse, sed legitimum esse. nam si uerbi gratia ex lege Aquilia uel Ollinia uel Furia in prouinciis agatur, imperio continebitur iudicium; idemque iuris est et si Romae apud recuperatores agamus, uel apud unum iudicem interueniente peregrini persona; et ex diuerso si ex ea causa, ex qua nobis edicto praetoris datur actio, Romae sub uno iudice inter omnes ciues Romanos accipiatur iudicium, legitimum est.
§ 103. Actions are either statutable or are derived from magisterial power.
§ 104. Statutable actions are those that are instituted within the city of Rome, or within an area limited by the first milestone, between Roman citizens, before a single judex; and these by the lex Julia judiciaria expire in a year and six months from their commencement, unless previously decided; which is the meaning of the saying that by the lex Julia an action dies in eighteen months.
§ 105. Magisterial power is the source of those actions that are instituted before recuperators, or before a single judex, if the judex or a party is an alien, or that are instituted beyond the first milestone from Rome, whether the parties are citizens or aliens. They are said to be derived from magisterial power because they can only be prosecuted as long as the praetor who delivered the formula continues in office.
§ 106. To have sued in an action derived from magisterial power, whether real or personal, and whether it had a formula of fact (in factum) or an allegation of law (in jus), is not by direct operation of law a bar to the institution of a subsequent action on the same question: and therefore a counteractive plea (exceptio) is necessary alleging that the matter has been already decided (res judicata) or that issue has been joined upon it.
§ 107. But if a statutable action in personam with an intentio of civil law has been already brought, a subsequent action on the same question cannot by direct operation of law be afterwards maintained, and on this account a counteractive plea is not required. But if a statutable action in rem or a statutable action in personam with an intentio of fact has been brought, a subsequent action on the same question may nevertheless by direct law be maintained, and on this account the counteractive plea that the matter has been already decided, or the plea that there has been a previous joinder of issue on it is necessary.
§ 108. It was otherwise formerly in the case of statute-process, since in this procedure a subsequent action on a question which had already been the subject of an action was always barred by direct operation of law, nor were counteractive pleas (exceptiones) at all in use in those times, as they are now.
§ 109. An action may arise from statute (ex lege) and yet not be statutable (legitimum), or statutable and yet not arising from statute. For instance, an action arising from the lex Aquilia, or Ollinia, or Furia, if maintained in the provinces, is derived from the power of the magistrate, and so it is if instituted at Rome before recuperators, or though instituted before a single judex, if the judex or a party is an alien; and, on the contrary, an action given by the edict, if maintained at Rome, before a single judex, between Roman citizens, is statutable (legitimum).
The sum total of the powers of a magistrate, so far as he was charged with the administration of justice, is described by the term Officium jus dicentis. This officium contained two ingredients—jurisdictio (in the narrower sense of the term) and imperium.
Of these two elements, Jurisdictio, which is the essential element of the Officium jus dicentis, denoted the power (perhaps originally vested in the Pontifex) of administering the civil law in the ordinary course of procedure. It consisted chiefly in presiding over the preliminary stages of litigation, and in the period of legis actiones was summed up in the utterance of the solemn words, Do, Dico, Addico; but in the formulary period it was principally performed, not by oral utterances, but by the delivery of written documents (verbis conceptis). In genuine litigation it was called jurisdictio contentiosa; in fictitious litigation, e. g. manumission by vindicta, alienation by in jure cessio, it was called jurisdictio voluntaria.
Imperium as coupled with the administration of civil justice (imperium quod jurisdictioni cohaeret, Dig. 1, 21, 1, 1), or as including it (cui etiam jurisdictio inest, Dig. 2, 1, 3), was called imperium mixtum, as opposed to imperium merum, or gladii potestas, the administration of criminal justice. Imperium mixtum may be divided into two functions, (1) cognitio extraordinaria and (2) actiones honorariae.
(1) Magistrates invested with imperium had the power of issuing commands (jus decernendi) to which they enforced obedience by fine (mulcta), distress (pignus), and imprisonment, and, as a preliminary to issuing a command (decretum), of summoning parties before them (vocatio), by means of a lictor, and conducting in person an investigation of facts (causae cognitio). To these functions of the praetor must be referred Restitutio in integrum, Missio in possessionem, and other proceedings which the praetor decided in person without reference to a judex, a form of procedure which finally embraced all cases, superseding the ordo judiciorum or formulary system.
(2) But even of suits belonging to the ordo judiciorum, which conformed, that is, to the principle of appointing a judex, a portion must be referred to the praetor’s imperium. All the new actions, unknown to the civil law, which the praetor invented when executing the powers conferred upon him by the law of uncertain date that introduced the formulary system, the lex Aebutia; such as fictitious actions and actions in factum; in a word, all actiones honorariae, were emanations of the praetorian imperium.
Jurisdictio is sometimes used in a wider sense as equivalent to officium jus dicentis; and then Lex and Jurisdictio form an antithesis similar to that which is formed by Jurisdictio in the narrower sense and Imperium, the antithesis, namely, of Legislator and Administrator.
This antithesis is the principle of many of the divisions or classifications in Roman jurisprudence, and is expressed in various terms. We have legitimum jus opposed to praetorium jus, § 34: legitimum jus opposed to praetoris jurisdictio, § 111: jus civile opposed to jus praetorium or jus honorarium, Dig. 1, 1, 7: actio legitima opposed to actio honoraria, Dig. 35, 2, 32, pr., and Collatio, 2, 5, 5: actio legitima opposed to actio utilis, Dig. 39, 3, 22, 2: actio civilis opposed to actio honoraria (omnes actiones aut civiles dicuntur aut honorariae), Dig. 44, 7, 25, 2, and Dig. 50, 16, 178, 3: actiones quae ipso jure conpetunt opposed to actiones quae a praetore dantur, § 112: actiones quae ex legitimis et civilibus causis descendunt opposed to actiones quas praetor ex sua jurisdictione comparatas habet, Inst. 4, 6, 3: actio civilis opposed to actio in factum a praetore danda, Dig. 2, 14, 7, 2: actio juris civilis opposed to interdictum, Dig. 43, 26, 14: and lex opposed to praetor (actionum modus vel lege vel per praetorem introductus), Dig. 50, 17, 27.
Although the division into judicia legitima and judicia quae imperio continentur does not exactly coincide with the division into actiones legitimae and actiones honorariae (e. g. an actio in factum, if litigated at Rome before a Roman judex by two Romans, would be judicium legitimum, and, vice versa, an actio civilis, if litigated before recuperators or in the provinces or between aliens, would be judicium quod imperio continetur, § 109), yet it is essentially the same, being based on the same antithesis of the Legislator and the Executive.
§§ 104, 105. Statutory actions (judicia legitima), so named perhaps from the lex Julia judiciaria, the statute by which they were defined, had by that statute a pendency of eighteen months. After that period they could neither be prosecuted nor renewed, as the right of action was consumed by res in judicium deducta. If the delay was caused by the defendant the plaintiff had a remedy by an action De dolo, Dig. 4, 3, 18, 4. Actions binding (continentia) by magisterial power had a still shorter pendency, the commission of the judex only continuing in force so long as the praetor who appointed him, and who himself was only appointed for a year, continued in office.
It is difficult to reconcile this account of the prescription or limitation of legal process with what we read of the duration of some controversies. Martial speaks of a cause that had been litigated in the three Fora, the Forum Romanum, the Forum Julium, and the Forum Augustum, for twenty years:
Bethmann-Hollweg, § 80, suggests that the limitation did not apply to Centumviral suits nor to Cognitio extraordinaria; and that any litigation might be protracted by a series of appeals.
This limit to the duration of legal proceedings, though it has left some traces in the Digest, was obsolete long before Justinian. Theodosius limited the pendency of actions to thirty years, Cod. Theod. 4, 14, 1; i. e. he ordained that as the right of action expired unless Litis contestatio took place within thirty years from the nativity of an action; so, after Litis contestatio, an interval of thirty years after any act of the judge or one of the parties should be a bar to any further prosecution of the action. Justinian limited the duration of civil suits to three years from Litis contestatio, and sanctioned the law against a party who failed to proceed in the action after being ordered to do so by contumacial proceedings (eremodicium, ἔρημος δίκη) against the contumacious plaintiff or defendant, Cod. 3, 1, 13; if both parties agreed to let the litigation lie dormant, he limited the dormancy or pendency to forty years. Bethmann-Hollweg, § 147.
The expiration of the commission of the judex by the expiration of the functions of the praetor who appointed him suggests an analogy to the Common Law previous to 1 Geo. 3, c. 23; by which act judges are continued in their offices notwithstanding any demise of the crown, which was formerly held to vacate their seats.
The division of actions into those with a pendency of eighteen months (judicia legitima) and those which expire with the praetorship (judicia imperio continentia) is not coincident with the division into those which are ipso jure extinctive of future litigation and those which are merely counteractive ope exceptionis, § 106. For although all judicia imperio continentia, whether in jus or in factum, are merely liable to be met by an exception, some judicia legitima, i. e. real actions and actiones honorariae, are not ipso jure extinctive, § 107. Gaius, therefore, would have been guilty of an inaccuracy if, 3 §§ 180, 181, he meant to identify the two divisions, but when he says, l. c. § 181, ‘si legitimo judicio debitum petiero, postea de eo ipso jure agere non possim,’ he seems only to be speaking of an actio stricti juris for the recovery of a debt, and not to refer in any way to actiones in rem or actiones honorariae.
The reason why real actions and actions in factum had not the same power of Novation as personal actions in jus was probably as follows: Under the legis actiones the same claim could not be the subject of a second trial, being ipso jure consumed or extinguished by having been once sued on; § 108. Nam qua de re actum semel erat, de ea postea ipso jure agi non poterat: nec omnino ita, ut nunc, usus erat illis temporibus exceptionum. After the lex Aebutia, which instituted the formulary procedure, an action in personam with an intentio in jus concepta, e. g. si paret Numerium Negidium Aulo Agerio x H.S. dare oportere, an action on which the parties had joined issue was consumed ipso jure in the same way as actions under the older procedure, provided it was a judicium legitimum, i. e. instituted between Roman citizens before a single judex, and within an area bounded by the first milestone. Proceedings thus defined, when once issue was joined in them, produced what is called a necessary novation, 3 § 180. Tollitur adhuc obligatio litis contestatione, si modo legitimo judicio fuerit actum: nam tunc obligatio quidem principalis dissolvitur, incipit autem teneri reus litis contestatione. But this formal rule was not interpreted as applicable to actions in factum, since such actions do not allege in the intentio of their formula any legal claim of the plaintiff, but only a fact; and thus do not formally contain any obligation, which could be the subject of novation; actions in factum indeed were used precisely in those cases, where no right was recognized by the civil law, that is where no right would have been enforceable by statute-process. Nor was the principle of ipso jure consumption applicable to real actions (actiones in rem), as the assertion made in the intentio of such actions, e. g. hunc fundum ex jure Quiritium meum esse, was not made exclusively against a particular defendant, and therefore did not prevent the action being ipso jure maintainable a second time. In Real actions and actions in factum, therefore, even though in other respects they had the characteristics of judicia legitima, the defendant required the protection of the exceptio rei in judicium deductae or rei judicatae. Cf. Keller, Civil Process, § 60.
§ 109. The nature of the lex Ollinia is not known.
The same imperium mixtum whence emanated new actions in favour of the plaintiff also issued exceptions in favour of the defendant, and in particular the exceptio rei in judicium deductae or rei judicatae, which supplemented the novation or consumption whereby a right of action was extinguished or annihilated by direct operation of law (ipso jure, § 106). The aim of the law in barring once-used rights of action directly by consumption or indirectly by exceptio, was to protect a defendant from being harassed by successive suits, and to guard against the public evil which would arise in the shape of a general unsettlement and uncertainty of rights if judicial decisions were not conclusive, Dig. 44, 2, 6. ‘That one right of action should only be tried once is a reasonable rule to prevent interminable litigation and the embarrassment of contrary decisions.’ Accordingly, it was adopted as a maxim that (in the absence of appeal or after appeal) judicial decisions should be assumed to be true. Res judicata pro veritate accipitur, Dig. 1, 5, 25. The principle may be stated more at length as follows: A judgment shall not be contradicted by a judgment in a subsequent trial between the same parties where the same right is in question (except, of course, by the judgment of a court of appeal). Et generaliter, ut Julianus definit, exceptio rei judicatae obstat quotiens inter easdem personas eadem quaestio revocatur vel alio genere judicii, Dig. 44, 2, 7, 4. ‘The plea of previous judgment is a bar whenever the same question of right is renewed between the same parties by whatever form of action.’ Let us consider more minutely the import of this rule.
The parties must be the same. Cum res inter alios judicatae nullum aliis praejudicium faciant, Dig. 44, 2, 1. ‘A judgment between certain parties does not determine the rights of other parties.’
This is subject to certain exceptions. For instance, a judgment is conclusive not only against the parties but also against their successors, whether universal or particular, Cod. 8, 35, 2. A judgment in a suit litigated by the father respecting the status (legitimacy) of a child is conclusive on all the world. A mortgagee, purchaser, husband, are bound by the judgment in a suit about title to the property litigated by the mortgagor, vendor, donor of dower, Dig. 42, 1, 63. A suit between a testamentary heir and the heir by intestacy may bind the legatees and the manumissi who accordingly may be entitled to be made parties and to appeal. In these cases the judex is said to establish jus, i. e. jus inter omnes, not merely jus inter partes: Placet enim ejus rei judicem jus facere, Dig. 25, 3, 3, pr.: Jus facit haec pronuntiatio, Dig. 30, 1, 50, 1.
The form of action is immaterial provided that the same right is contested. Thus a depositor, lender, pledgor, may recover damages for injury to the thing deposited, lent, or pledged, either by action on his contract or under the lex Aquilia, but if cast in one, he cannot bring the other, if the question of liability is really the same. Cf. Grueber, Lex Aquilia, p. 230, &c.
It is otherwise as if the right contested is really different; if in one action a plaintiff claims a jus in rem, in the other a jus in personam. Paulus respondit, ei qui in rem egisset nec tenuisset, postea condicenti non obstare exceptionem rei judicatae, Dig. 44, 2, 31. ‘If a plaintiff after losing a real action brings a personal action, he is not barred by the plea of previous judgment.’
The term ‘the same right’ must be taken to include a right and its correlative duty; in other words, it is immaterial that the position of plaintiff and defendant is inverted. Si quis rem a non domino emerit, mox petente domino absolutus sit, deinde possessionem amiserit et a domino petierit, adversus exceptionem, ‘Si non ejus sit res,’ replicatione hac adjuvabitur: ‘At si res judicata non sit,’ Dig. 44, 2, 24. ‘A purchaser of a thing from a non-proprietor, sued for it by the true proprietor and acquitted, afterwards losing possession thereof, and seeking (by actio Publiciana, 2 § 43) to recover it from the former proprietor, may meet the exception by which he pleads true dominion by the replication of previous judgment.’ This example further shows that the plea, though invented chiefly to protect defendants, is sometimes available for plaintiffs.
When the same right is in question it is immaterial that the secondary object (2 § 1, comm.) of the right is different. Thus, a plaintiff claiming to be heir, who fails when he brings hereditatis petitio for Blackacre, cannot afterwards bring hereditatis petitio for Whiteacre as a part of the same inheritance. Of course, if there is no question of hereditas, the difference in the object involves a different right of Ownership: and the Vindicatio by which a man claims Blackacre is not barred by a previous Vindicatio in which he claimed Whiteacre.
Perhaps the same right may be in question even when the primary object, the benefit which the right immediately contemplates, is different. Thus, a plaintiff who fails in a condictio furtiva brought to recover stolen property, cannot afterwards maintain an actio furti to recover a penalty for theft. We might say that the plaintiff has a single compound right to recover his property and to recover a penalty, but perhaps it is more accurate to say that he has two separate rights which, however, stand or fall together by necessary implication. The identity of the right contested is more expressly insisted on in the legal maxim, De eadem re ne bis sit actio, which grounded the exceptio rei in judicium deductae, founded on the novation of the plaintiff’s original right by Litis contestatio. The maxim, Res judicata pro veritate accipitur, grounds the exceptio rei judicatae, which rests on the novation of Litis contestatio by Condemnatio or Absolutio, 3 § 180; post litem contestatam condemnari oportere, post condemnationem judicatum facere oportere. The two exceptions were substantially the same, and were pleaded in the formula by the same terms: Quod ea res in judicium ante venisset, cf. Lenel, tit. xliv, § 275. The maxim, Res judicata pro veritate accipitur, is the more comprehensive as extending beyond the right to the facts constituting the title and their logical consequences. Bethmann-Hollweg, § 111.
It is immaterial, namely, whether a proposition was decided as the final question, or as an essential element and immediate ground of the final decision (ratio decidendi). Every judgment is a decision not only on the ultimate issue, but by implication on all the antecedent pleas, not only the exception, replication, duplication (which are not a direct answer to the claim of the plaintiff or defendant, being only counteractive, § 115), but also on all facts, e. g. solutio, acceptilatio, novatio, which run counter to the claim of the plaintiff in the intentio and so would not be expressed in a Roman formula. Thus, a plaintiff who fails when he sues by real action for a particular thing, or by a personal action for a debt, basing his claim on the presupposition of his succession to a person deceased, cannot afterwards claim the whole succession by hereditatis petitio. Hence we often meet with praescriptio praejudicialis, e. g. Ea res agatur si in ea re praejudicium hereditati non fiat, § 133, or exceptio praejudicialis, e. g. extra quam si in reum capitis praejudicium fiat, Cic. de Inventione, 2, 20; i. e. dilatory pleas whereby a party seeks to postpone a less important issue (causa minor) until a more important issue (causa major) with which it is indissolubly connected shall have been decided. This praescriptio implies that if the more important issue were decided on possibly inadequate examination, as incidental or ancillary to the decision of the minor issue, the re-trial of the more important issue would be barred by the exceptio rei judicatae.
Observe that the rule is, a judgment shall not be contradicted by a judgment in another action when the same right is in question, not, when the same title is in question. The latter expression would be sufficient to meet the case of personal actions. Here every different obligation is ground to support a different action, and every different title engenders a different obligation. Thus a plaintiff who fails in an action on tort alleging Dolus is not precluded from a subsequent action on tort alleging Culpa, Dig. 40, 12, 13. But the rule so stated would not adequately meet the case of real actions. Here it is immaterial that the plaintiff alleges a different title. There can be many obligations between the same parties in respect of the same subject; but the same subject only admits of one owner, and consequently of only one valid title to ownership. Hence the plaintiff in a real action was required to adduce all his fancied titles on pain of being barred by the exception of res judicata, and if, for instance, he claims ownership on the ground of tradition he cannot afterwards claim by another title, e. g. usucapion, § 131 a. A man who fails in a claim as testamentary heir may, however, afterwards claim as heir by descent, Dig. 5, 3, 8: he has as many actions (hereditatis petitio) as he has delations: in fact the legacies and the arbitrary division of the succession between the co-heirs make a testamentary inheritance quite a different right (alia res) from an intestate inheritance. (So Ihering, § 51. But cf. Savigny, § 300.) The rule, of course, does not apply to a title not in existence at the time of the former action (causa superveniens), and it is defeated if the plaintiff takes the precaution expressly to limit the former action (probably by means of a praescriptio) to the investigation of a specific title, a limitation called causae adjectio. If he was allowed by the praetor to do this and failed in his suit, he could afterwards claim to be owner by a different title. Si quis petat fundum suum esse eo, quod Titius eum sibi tradiderit, si postea alia ex causa petat causa adjecta, non debet summoveri exceptione, Dig. 44, 2, 11, 2. ‘A plaintiff who loses an action in which he claimed property in land on the ground of delivery of possession, is not barred by exception from bringing another real action, expressly limited, like the former, to a specific title.’
Directly extinctive (ipso jure) consumption of a right of action vanished with the formulary system, and in Justinian’s time the averment of Res judicata is only found under the form of Exceptio or a Counteractive plea. Indeed, when the judex of the republican period ceased to be commissioned to hear and determine causes, one of the conditions of Judicium legitimum, of which such consumption was a consequence (unus judex, § 107), was always of necessity wanting.
But this was not the only change: the consumption of a right of action by the operation of Res in judicium deducta, whether as a directly extinctive (ipso jure) or a counteractive plea (ope exceptionis); in other words, necessary Novation operated by Litis contestatio, was also abrogated and is not to be found in the statute-book of Justinian. Even the operation of Res judicata, so far as it was governed by the same rules as Res in judicium deducta and merely indicated by its name a later stage of the proceedings (sententia lata), may also be said to have been abolished. The rules, that is to say, which governed the transformed Exceptio rei judicatae, as it prevailed in the time of Justinian, were much more rational and flexible than the hard-and-fast doctrine of Necessary novation, whether by Litis contestatio or by Sententia lata, which prevailed in the time of Statute-process, § 108, and apparently survived to the days of Gaius. In determining whether the exceptio rei judicatae should be allowed to put a stop to the maintenance of a new action, the judge in Justinian’s time would have to consider whether the second action raised the same question between the same parties as the first action; in other words, whether the reasons why the plaintiff’s first action was dismissed were still applicable in the case of the second action. If they were, the exceptio would prevail, if not, if e. g. the plaintiff’s first action had been dismissed in consequence of Plus petitio or some dilatory plea or by consumption of process (duration of suit for eighteen months, or termination of praetorship), he was no longer held to have eternally forfeited his claim: but suitors were merely restrained, in accordance with the real object of the institution, from harassing their opponents with renewed litigation on the precise questions that had once been adequately decided. The operation of the plea was not less powerful nor less extensive, but made more completely conformable to equity. Savigny, §§ 280-301.
§ 110. Quo loco admonendi sumus eas quidem actiones quae ex lege senatusue consultis proficiscuntur perpetuo solere praetorem accommodare, eas uero quae ex propria ipsius iurisdictione pendent plerum|que intra annum dare.
Inst. 4, 12, pr.
§ 111. Aliquando tamen—|NAimitatur ius legitimum: quales sunt eae, quas bonorum possessoribus ceterisque qui heredis loco sunt accommodat. furti quoque manifesti actio quamuis ex ipsius praetoris iurisdictione proficiscatur, perpetuo datur; et merito, cum pro capitali poena pecuniaria constituta sit.
Inst. l. c.
§ 112. Non omnes actiones, quae in aliquem aut ipso iure conpetunt aut a praetore dantur, etiam in heredem aeque conpetunt aut dari solent. est enim certissima iuris regula, ex maleficiis poenales actiones in heredem nec conpetere nec dari solere, ueluti furti, ui bonorum raptorum, iniuriarum, damni iniuriae. sed heredibus huius modi actiones conpetunt nec denegantur, excepta iniuriarum actione et si qua alia similis inueniatur actio.
Inst. 4, 12. 1.
§ 113. Aliquando tamen 〈etiam〉 ex contractu actio neque heredi neque in heredem conpetit; nam adstipulatoris heres non habet actionem, et sponsoris et fidepromissoris heres non tenetur.
Inst. l. c.
§ 110. Here we ought to take notice that actions founded on a statute (lex) or a senatusconsultum are granted by the praetor after any length of time has elapsed, but those founded on the praetor’s own jurisdiction are usually only granted within a year from their having arisen.
§ 111. But sometimes the praetor follows the pattern of civil law and makes his actions perpetual; such are the actions which he grants to the praetorian successor (bonorum possessor) and to other persons who are in the position of an heir (heres) (§ 35). So for theft detected in the commission (furti manifesti), the action, though praetorian, is perpetual; and properly so, the pecuniary penalty having been instituted in the place of capital punishment.
§ 112. It is not always the case that the actions, whether civil or praetorian, which lie against a man lie also against his heir, the rule being absolute that penal actions arising from delict, for instance, from theft (actio furti), rapine (vi bonorum raptorum), outrage (injuriarum), unlawful damage (damni injuriae), are not granted against the heir of the delinquent; but the heirs of the injured party are competent to bring, and are not refused, these actions, except in the case of the action for outrage and any similar action if such is to be found.
§ 113. Sometimes, however, even an action upon contract cannot be brought by the heir, nor against the heir; for the heir of the adstipulator has no action, nor does any lie against the heir of the sponsor or fidepromissor.
§ 110. Having considered what time may elapse between joinder of issue in an action (litis contestatio) and its termination (sententia lata), Gaius proceeds to inquire what time may elapse between the nativity of a right of action or the event which marks the first moment of the right of action (actio nata) and the exercise of this right or actual commencement of the action. Thus he is here taking notice of the subject which we call the Limitation of actions.
Originally all civil actions (actiones civiles) were unlimited in duration (actiones perpetuae); afterwards the praetors limited in their edicts the right of bringing most of the new actions which they introduced (actiones praetoriae) to the period of a year from the date of the event on which the action was founded ‘infra annum judicium dabo.’ The aediles limited their actions on account of sale to a still shorter period, viz. to six or twelve months of dies utiles. But the praetorian actions which were framed after the pattern of the civil law were, as we see by the text, § 111, like the civil actions they copied, unlimited, while on the other hand some few civil actions were subject to a limitation, as the Querela Inofficiosi Testamenti, which had to be brought within five years. Those actions which could be brought after any time had elapsed were called on this account actiones perpetuae, as opposed to actiones temporales, which were actions limited in respect of duration. At some uncertain period a limitation was introduced by the provincial governors in suits relating to land, known as praescriptio longi temporis: if plaintiff and defendant were domiciled in the same province, ten years’ possession, accompanied with justus titulus and bona fides on the part of the possessor, entitled the defendant to plead the exceptio temporis, and so to defeat the action of the owner for recovery of possession: twenty years’ possession was required if plaintiff and defendant were domiciled in different provinces. In later times, indeed, as we noticed when we were dealing with the subject of usucapion, such possession constituted not simply a limitation of the owner’s action, that is, afforded a good defence against his action, but operated like usucapion; that is, transferred the ownership to the possessor. Constantine introduced a forty years’ limitation of a real action or prescription: that is, ordained that an owner should lose his right of action after forty years’ possession, Cod. 7, 39, 2, pr. The emperors Honorius and Theodosius II, a. d. 424, made all actions, not otherwise limited, subject to a limitation of thirty or in some exceptional cases forty years, so that from this time actio perpetua no longer meant an action which was unlimited, but one which could be maintained at any time within this long period. See 2 §§ 40-61, comm., 4 § 131, comm.
Justinian made longi temporis praescriptio, or possessio, that is, continuous possession for ten or twenty years, subject to the conditions of usucapion, the universal mode of acquiring ownership in land by operation of time; and added a second form called longissimi temporis praescriptio, Cod. 7, 39, 8. But we are only concerned with praescriptio here in its original form as a limitation of the owner’s right of action; as a mode of acquiring ownership it belongs to another part of this treatise. And even as a limitation of action such prescription has this peculiarity, that it cannot be pleaded generally, but only by a defendant, who has been in possession of the property in question for the prescribed period. Thus being a defence founded on possession, and not simply on the owner’s omission to bring his action, it comes to a great extent under the category of substantive law.
Longi temporis praescriptio was applicable as a defence not only to actions of an owner claiming possession of his property, but also to those relating to the existence of a servitude, and though a lex Scribonia is said to have done away with the usucapion of servitudes, in later imperial law praescriptio became a mode of acquiring servitudes, as it was of acquiring ownership. In the thirteenth century the canon law required as a condition both of acquisitive and of extinctive prescription, in all cases brought for restitution of possession, continued bona fides (not merely bona fides in the inception, as the civil law required for usucapion) on the part of the possessor. This principle applied to the defendant in all real actions and in various personal actions, viz. commodati, depositi, locati, pigneraticia, the latter being the action whereby a person who had given over his property in pledge to his creditors sued on the contract for its restitution. Accordingly, by canon law, the debitor rei alienae, e. g. rei commodatae, as opposed to the debitor rei propriae, e. g. pecuniae creditae, had neither the right of acquisitive nor of extinctive prescription in the absence of continued bona fides. Savigny, § 244.
In every limitation of an action or prescription, whether of longer or shorter duration, two points have to be fixed: the moment at which the time of prescription begins to run and the moment at which it is terminated. I proceed to the consideration of this problem.
The date of the Nativity of a right of action (actio nata), or the moment from which prescription begins to run, is in Real actions the moment when a Real right is violated; e. g. the moment when the defendant takes unpermitted possession of a thing of which the plaintiff is proprietor; or when a hirer or borrower converts detention into possession by beginning to possess in his own name and not in the name of the proprietor.
In Personal action on delict prescription begins to run from the moment of the delict; for at this moment the sanctioning right of the plaintiff to recover the penalty is complete.
Similarly in Quasi-contracts: prescription of tutelae judicium begins to run from the end of the guardianship when the tutor’s default is established: that of condictio indebiti from the date of the mistaken payment.
In actions on Contract, according to most writers including Savigny, prescription similarly begins to run from the moment at which the contract is violated, i. e. from the inception of the creditor’s sanctioning right. According to Vangerow, § 147, the running of prescription does not always wait for the violation of the creditor’s primary right, or a breach of the contract by the debtor. If a term for performance is fixed, then indeed prescription will begin to run from the expiration of the term, i. e. from the violation of the plaintiff’s primary right, Cod. 7, 39, 7, 4: but whenever no term is prefixed, prescription begins not, as Savigny holds, from the creditor’s demand of performance, but from the completion of the contract; i. e. contemporaneously with the origin of the primary right. It precedes any violation of the plaintiff’s right, unless we assume (what is absurd) that the default of instantaneous performance is such a violation. Savigny, § 240.
Savigny would except from the rule those contracts which, like mutuum, depositum, commodatum and the like, essentially and in their nature contemplate a certain delay in performance. In such contracts he holds that prescription begins not from the completion of the contract, but from the demand of performance.
It seems paradoxical to maintain that for the purposes of prescription the right of action precedes the existence of a wrong: but Vangerow’s doctrine seems to be confirmed by the Digest: Est . . . scriptum eum qui rem deposuit, statim posse depositi actione agere: hoc enim ipso dolo facere eum qui suscepit, quod reposcenti rem non reddat, Dig. 16, 3, 1, 22; from which it appears that the action is equivalent to a demand. Similarly we read in the Institutes of Justinian, 3, 15, 2 [Ex stipulatione pura] confestim peti potest. Indeed it would be strange, as Vangerow observes, if the neglect of a creditor or his successor to demand repayment for 100 years adjourned the inception of prescription for all that period. Cf. Windscheid, 1 § 107, n. 5.
It is clear that the Nativity of an action is not to be identified with Mora, but will often be an earlier occurrence. Mora, which in respect of interest and liability for loss is attended with serious consequences to a defendant (whereas praescriptio is adverse to the plaintiff), does not arise before one of two events; either the expiration of the term prefixed for payment, or the debtor’s refusal to comply with the creditor’s demand, 2 § 280, comm. The demand of the creditor is necessary to disprove the presumption that the delay of payment was by his indulgence: no such condition, according to Vangerow’s doctrine, delays the nativity of a right of action.
The other limit of Prescription, or the event by which it is broken (interruptio), is any recognition of a right by the defendant or the institution of a suit by the plaintiff. The institution of a suit was in earlier times identified with Litis contestatio: but in the latest period, as this stage of procedure could be delayed by the arts of the defendant, it was necessary to fix some other point, with which this and the other effects of Litis contestatio should be connected. Savigny, § 278. Accordingly Citation, awarded by the judge in response to the libellus of the plaintiff and served upon the defendant (insinuatio, conventio) by a public officer, was deemed to be the moment at which an action commences, and prescription is interrupted, or usucapion is revocable. Interruptio per conventionem introducta, Cod. 7, 39, 7, 5. Qui obnoxium suum in judicium clamaverit et libellum conventionis ei transmiserit . . . . videri jus suum omne eum in judicium deduxisse et esse interrupta temporum curricula, Cod. 7, 40, 3.
The opinion of Savigny that prescription in later Roman law was interrupted or put a stop to in all actions alike by Citation is the generally received one, though Vangerow and others maintain that this only applies to actiones perpetuae, not to actiones temporales, the old rule as to litis contestatio still surviving according to them in respect of the latter. Savigny refuses to accept such limitation, and explains (§ 242, III) how this erroneous view (as he considers it) arose. The passages from the older writers mentioning litis contestatio in this connexion all refer to actiones temporales, for the simple reason that none other were prescriptible in the classical law, but it does not follow that this difference between the two kinds of action was maintained, when all actions became prescriptible; indeed, if there was to be any difference, the interruption of actiones temporales ought to have been made easier than that of actiones perpetuae, and not, as according to Vangerow’s view it would be, more difficult. The two passages in the Digest which seem to support Vangerow, Dig. 12, 2, 9, 3, Dig. 27, 7, 8, 1, the compilers forgot to alter, so as to bring them into accordance with existing law. (Windscheid, 1 § 108, n. 4.)
We must distinguish between the interruption and the mere suspension, dormancy, or stay, of prescription. When prescription is interrupted (for instance, by acknowledgment of the debt) the already elapsed period of inactivity on the part of the plaintiff is cancelled, and the whole prescription must recommence from the date of the interruption. When prescription is suspended, if such suspension takes place after prescription has begun to run, the period which has elapsed is not invalidated but is added to the period which follows the removal of the obstacle which caused the suspension. Suspension, as expressed in the modern maxim: Agere non valenti non currit praescriptio, is produced by some inability of the plaintiff to sue: but this rule is not generally applicable, when the action can be carried on by an agent, as in the case of a lunatic; though suspension is produced by the party entitled being impubes or by his minority, except in the prescription of thirty years: it is also produced by the obstacles recognized in the rules of tempus utile, 2 § 165, comm., and by the beneficium deliberandi accorded to the heir, 2 § 162, comm. By the ordinance de tigno injuncto in the Twelve Tables the right of the co-owner of building materials to sue for them was suspended so long as they formed part of a building, Inst. 2, 1, 7, 10.
Exception had sometimes a stronger, sometimes a weaker, operation: the stronger effect is the extinction of both civilis and naturalis obligatio. Such is the effect of the exceptio Sc. Vellaeani, 3 §§ 110-127, comm. The weaker operation is a bar to civilis obligatio, but leaves naturalis obligatio unimpeded and is instanced by exceptio Sc. Macedoniani, 3 §§ 90, 91, comm. Naturalis obligatio, as we have already mentioned, 3 §§ 88, 89, comm., besides the negative feature that it is not a ground to support an action may have other important consequences: it excludes indebiti condictio in the event of payment by mistake, and it may be a ground to support compensatio, novatio, pignus, fidejussio, constitutum. Let us examine whether prescription or Exceptio temporalis had the weaker or the stronger operation.
We must distinguish between Real and Personal actions.
The effect of the mere limitation of a real action (e. g. vindicatio) is that the right of the original owner continues, but is not ground to support an action against the possessor or his successor. If the thing passes into the possession of a stranger, then the original owner can recover it from him by vindicatio: and if it comes by lawful means into the possession of the original owner, the former possessor cannot recover it from him by vindicatio, Cod. 7, 39, 8, 1. In the event of bona fides there could under the law of Justinian after thirty or forty years be no question of mere limitation; because then, as we have seen, the very jus of the original owner would have been extinguished. In real actions, then, limitation does not entirely deprive the owner of his right, though here of course there is no obligatio naturalis.
The effect of prescription or limitation in personal actions is controverted. Savigny holds that the stronger effect is confined to exceptions founded on jus naturale; and that prescription being, as shown by its arbitrary numerical character, an institution of jus civile, can only have the weaker operation, i. e. leaves untouched the obligatio naturalis, § 249. Vangerow, however, seems to show conclusively, § 151, that this doctrine is not tenable. Many passages of the Digest show that in temporal actions prescription of right to sue had the stronger operation, excluding fidejussio, Dig. 46, 1, 37, and constitutum, Dig. 13, 5, 18, 1, that is not regarding a prescribed debt as a subsisting debt for the purpose of being secured by way of suretyship, though if it had been a natural obligation, it could have been thus secured, and admitting condictio indebiti, Dig. 46, 8, 25, that is if a prescribed debt was paid to the creditor by mistake, the debtor could claim repayment, which if a natural obligation remained after the time of limitation had passed, he could not have done: and there is no reason why its operation should not be equally strong in perpetual actions. Indeed the very object of prescription, the setting of some limit to the duration of uncertainty, would be defeated if a creditor were allowed to enforce by Compensation a claim that for an indefinite period he had not attempted to enforce by action. Prescription, then, in all personal actions has the stronger operation. (English law seems to differ, at least so far as it recognizes a debt made irrecoverable by the statute of limitations as a sufficient consideration to give legal force to the debtor’s promise to pay: for, in the absence of all legal obligation, a mere moral obligation would admittedly not suffice to bind the debtor before the tribunals. Also a lien, or right to detain goods till a debt is satisfied, exists after the remedy by action is barred by the Statute of Limitations.)
Has prescription the same effect upon the grounds of defence (Exceptions) that it has upon the grounds of attack (Actions): can there be temporis Replicatio as well as temporis Exceptio? This depends upon the nature of the exception. In the case of some exceptions there are corresponding actions, which other exceptions are without. An instance of the latter class is the exceptio rei judicatae when judgment in a vindicatio is given in favour of the possessor. This merely denies the right of the plaintiff without affirming the right of the defendant, and therefore cannot be used by the defendant as a ground of action: but it may be employed by the defendant as a means of defence against the plaintiff or his successor after any lapse of years.
An instance of exception having a corresponding action is exceptio metus, which belongs to a defendant who may, if he chooses, be a plaintiff in an actio quod metus causa. So, too, there is the exceptio doli and the actio doli.
Savigny holds, § 249, that such exceptions are imprescriptible; but the better opinion seems to be that they have the same duration as the right of action (in the words of the French jurists: Tant dure l’action, tant dure l’exception): for the reason alleged for making exceptions imprescriptible: Is cum quo agitur non habet potestatem quando conveniatur, Dig. 44, 4, 5, 6, the inability of the person armed with the exception to fix when the matter shall be litigated, is inapplicable when the same person is also armed with a right of action. Vangerow, l. c.
§ 111. The rules prescribed by the praetor for the duration of actions seem to have been as follows; purely restorative or remedial actions (quae rei persecutionem habent) i. e. actions where there is neither gain for the plaintiff nor loss for the defendant, but the patrimony of each is left at its original level, § 7, are generally speaking perpetual; that is to say, according to the change in the law made subsequently to the time of Gaius, are prescribed in thirty years. Cf. Dig. 44, 7, 35 In honorariis actionibus sic esse definiendum Cassius ait, ut quae rei persecutionem habeant, hae etiam post annum darentur, ceterae intra annum. Honorariae autem, quae post annum non dantur, nec in heredem dandae sunt, ut tamen lucrum ei extorqueatur, sicut fit in actione doli et interdicto unde vi et similibus. Penal actions given by the praetor (quibus poenam persequimur), using the word in a wide sense to include both those actions, where there is no gain to the plaintiff but possibly a loss to the defendant, as well as those where if judgment passes for the plaintiff there is enrichment for the plaintiff and impoverishment for the defendant, are annual. But the actio furti manifesti, though a praetorian action, was perpetual, for the reason given by Gaius in § 111.
The actio rerum amotarum, being brought for the purpose of restitution, was perpetual. Cf. Dig. 35, 2, 21, 5 Haec actio licet ex delicto nascatur, tamen rei persecutionem continet et ideo non anno finitur, sicut et condictio furtiva.
The actio doli mali, if brought for complete indemnification, was annual: but if the damages were limited to the amount gained by the defendant, in which case the action was rei persecutoria, it was perpetual, Dig. 4, 3, 28.
When a right of action was limited to a year, this was an annus utilis, that is, a year of dies utiles, of days open to jurisdiction, and on which the plaintiff was not hindered by any insurmountable obstacle, such as absence of plaintiff or defendant, illness of plaintiff and inability to appoint a procurator, Dig. 44, 3, 1. An annus utilis, though nominally a year, might really be a much longer period. Where a right of action lasted beyond a year, every day was counted (tempus continuum), 2 § 173. From the indefinite duration of annus utilis it is clear that the suggestion, Inst. 4, 12, pr., of a connexion between the annus of prescription and the annus of the praetorship is purely fanciful.
§ 112. The transmission of an action to the heirs of the parties is either active transmission, i. e. transmission to the heir of the party having a right of action, or passive transmission, i. e. transmission of liability to the heir of the party subject to an action.
The general rule relating to transmission is, that all actions are transmissible, both actively, that is, to the heirs of the party having a right of action, and passively, that is, to the heirs of the party subject to an action.
The exceptions are that (1) as to active transmission Vindictive actions (of which the type is actio injuriarum), i. e. actions brought to avenge wrong to the feelings rather than to repair wrong to the property, are not transmitted to the heirs of the party having a right of action; and that (2) as to passive transmission, delictal actions are only transmitted against the heirs of the party subject to an action so far as the inheritance has been enriched by his wrong.
But condictio furtiva lies against the heres of the defendant for the whole amount of loss caused by the furtum, which some writers explain by saying that, although this action is occasioned by delict, it is not deemed to be delictal or penal, but purely restorative (rei persecutoria). Condictio furtiva, however, is not only occasioned by delict, but gives rise to penal consequences, should the damages exceed the amount of profit which the defendant has derived from the delict. The fact that these penal consequences attach not only to the fur himself but also to his heir can only be regarded as an anomaly, whether we look on the action as a delictal one, or as a species of condictio sine causa. Cf. Dernburg, Pand. 3 § 139, Windscheid, Pand. 2 § 453.
Penal actions, either when their object is reparation for the injury or when it is the recovery of a penalty, when once brought, that is, when they have once reached the stage of litis contestatio, become capable of both active and passive transmission: Poenales autem actiones, si ab ipsis principalibus personis fuerint contestatae, et heredibus dantur et contra heredes transeunt, Inst. 4, 12, 1. In modern systems of law based on the Roman, the heir is as a rule liable on account of the delicts of the deceased to the extent of the property to which he has succeeded, and not simply for the amount the inheritance has been enriched by the wrong.
English law was made, as we have seen, by statute, more favourable than Roman law to the plaintiff in actions ex delicto in respect of the passive transmission of the remedy.
The executors of a testator and administrators of an intestate have the same remedy for injury to the personal property of the deceased as he would have had in his lifetime, 4 Edw. III, c. 7; 25 Edw. III, st. 5, c. 5.
For an injury committed against his real property within six months of his death, they may bring an action within one year after his death. And for an injury to either real or personal property committed within six months before the death of the wrong-doer, an action may be brought against his executors or administrators within six months after they have taken on themselves administration, 3 & 4 Will. IV, c. 42. (Cf. Pollock, Law of Torts, pp. 59, 60, 4th ed.)
Under Justinian, when the Adstipulator, Sponsor, and Fidepromissor had disappeared, all actions founded on contract were passively transmissible in solidum against the heirs of the defendant; and it was apparently a mere inadvertence of Tribonian to repeat, Inst. 4, 12, 1, the words of Gaius, § 113, which contemplate the possibility that an action founded on contract should be incapable of passive transmission. (For another explanation of this passage see the note to it in Moyle’s Inst.)
§ 114. Superest ut dispiciamus, si ante rem iudicatam is cum quo agitur post acceptum iudicium satisfaciat actori, quid officio iudicis conueniat, utrum absoluere, an ideo potius damnare, quia iudicii accipiendi tempore in ea causa fuerit, ut damnari debeat. nostri praeceptores absoluere eum debere existimant, nec interesse cuius generis sit iudicium; et hoc est quod uulgo dicitur Sabino et Cassio placere omni|a iudicia absolutoria esse. —|—NA de bonae fidei iudiciis autem idem sentiunt, quia in eiusmo|di iudiciis liberum est officium iudicis. tantumdem | et de in rem actionibus putant, quia formulae uer|bis id ipsum exprimatur —|—|NAquibus —|—NA petentur et ad —|—NAinterdum enim —|—|—|—NA sunt etiam | in personam tales actiones in quibus exprimitur —|—|NA actori qu —|—|—|NA paratus ad actoris —|—|—|NAactum fuerit.
Inst. 4, 12, 2.
§ 114. We next inquire whether, if the defendant before judgment, but after the parties have joined issue, satisfies the plaintiff, the judex has power to absolve him, or must condemn him, because he was liable to condemnation when the formula was delivered. The authorities of my school hold that he should be absolved without distinction of the kind of action; and hence the common saying that according to Sabinus and Cassius all actions involve free power of absolution. The other school agree in respect of actions bonae fidei, where the judex has more discretion, and of real actions because there is an express provision to this effect in the terms of the formula: (as also in respect of actiones arbitrariae in personam, since they likewise contain an express provision in their formula that the judex is not to condemn if the defendant satisfies the plaintiff; but not in respect of actions stricti juris).
§ 114. Respecting the power of the judex to absolve the defendant in the above circumstances, Justinian confirmed the opinion of the Sabinians, Inst. 4, 12, 2.
The principle, Omnia judicia esse absolutoria, indicates an exception to the effects of Litis contestatio. The motive of the effects ascribed to Litis contestatio is in general to avert from the plaintiff the injurious consequences of the protracted duration of a trial. Accordingly if judgment passed in his favour he was put into the position he would have occupied if judgment had immediately followed on Litis contestatio. If this rule had been universal no event supervening on Litis contestatio could have extinguished the plaintiff’s right to have judgment in his favour, which in some cases would have been unjust to the defendant, but the free discretion given to the judex by the formula of a bonae fidei action enabled him to take into account any circumstances arising after joinder of issue which would entitle the defendant to absolution, if admissible.
In actions stricti juris it seems at first to have been held that what would have been an adequate ground for the extinction of the plaintiff’s claim if it had happened before Litis contestatio, e. g. the purely casual destruction of the subject of litigation, was ineffectual to save the defendant from condemnation if it happened after Litis contestatio. Finally, however, the doctrine prevailed that, in the absence of Mora, such an event was effectual for the absolution of the defendant, even when it occurred after Litis contestatio. See 3 § 180, comm.
In real actions, where the condemnation or absolution of the defendant was left to the arbitrium of the judge, as in the formula petitoria, the purely casual destruction of an object in the hands of a bona fide possessor, even when it happened after joinder of issue, produced the absolution of the defendant, on the ground that impossibilium non est obligatio. It is to be observed, however, that the circumstances arising subsequent to Litis contestatio effectual for the absolution of the defendant in a real action are limited to those which destroy the Obligation engendered by Litis contestatio. The defendant, that is to say, is subject to condemnation in damages in spite of his having acquired the plaintiff’s property by usucapion completed after Litis contestatio (for, as we have seen, usucapion was not interrupted by Litis contestatio), in spite of the extinction of the plaintiff’s servitude by non-usus completed after the same date, in spite similarly of casual destruction of the subject in his hands, he being mala fide possessor or after mora, and in spite of destruction by his culpa, he being bona fide possessor.
Subject to this limitation, the rule was universal: omnia judicia esse absolutoria: i. e. all classes of action, real as well as personal, stricti juris as well as bonae fidei, whatever the original right of the plaintiff, may terminate by a judgment in favour of the defendant in consequence of some event (casual destruction of the subject, voluntary restitution by the defendant, &c.) subsequent to Litis contestatio. Cf. Vangerow, § 160.
The words in the text ‘quia formulae verbis id ipsum exprimatur’ refer to the direction to the judex in the formula petitoria not to condemn the defendant if he restores the thing, which is the object of the action, to the plaintiff. Compare what has been stated respecting actiones Arbitrariae, § 47, comm.
§ 115. Sequitur ut de exceptionibus dispiciamus.
Inst. 4, 13, pr.
§ 116. Conparatae sunt autem exceptiones defendendorum eorum gratia cum quibus agitur. saepe enim accidit, ut quis iure ciuili teneatur, sed iniquum sit eum iudicio condemnari.
Inst. l. c.
§ 116 a. Veluti 〈si〉 stipulatus sim a te pecuniam tamquam credendi causa numeraturus, nec numerauerim; nam eam pecuniam a te peti posse certum est, dare enim te oportet, cum ex stipulatu teneris; sed quia iniquum est te eo nomine condemnari, placet per exceptionem doli mali te defendi debere.
Inst. 4, 13, 1.
§ 116 b. Item si pactus fuero tecum, ne id quod mihi debeas a te petam, nihilo minus [id ipsum] a te petere possum dari mihi oportere, quia obligatio pacto conuento non tollitur; sed placet debere me petentem per exceptionem pacti conuenti repelli.
Inst. 4, 13, 3.
§ 117. In his quoque actionibus quae 〈non〉 in personam sunt exceptiones locum habent. ueluti si metu me coegeris aut dolo induxeris, ut tibi rem aliquam mancipio darem; nam si eam rem a me petas, datur mihi exceptio, per quam, si metus causa te fecisse uel dolo malo arguero, repelleris.
§ 117 a. Item si fundum litigiosum sciens a non possidente emeris eumque a possidente petas, opponitur tibi exceptio, per quam omni modo summoueris.
§ 118. Exceptiones autem alias in edicto praetor habet propositas, alias causa cognita accommodat. quae omnes uel ex legibus uel ex his quae legis uicem optinent, substantiam capiunt, uel ex iurisdictione praetoris proditae sunt.
Inst. 4, 13, 7.
§ 119. Omnes autem exceptiones in contrarium concipiuntur, quam adfirmat is cum quo agitur. nam si uerbi gratia reus dolo malo aliquid actorem facere dicat, qui forte pecuniam petit quam non numerauit, sic exceptio concipitur si in ea re nihil dolo malo a. agerii factvm sit neqve fiat: item si dicat contra pactionem pecuniam peti, ita concipitur exceptio si inter a. agerivm et n. negidivm non convenit, ne ea pecvnia peteretvr; et denique in ceteris causis similiter concipi solet; ideo scilicet quia omnis exceptio obicitur quidem a reo, sed ita formulae inseritur, utcondicionalem faciat condemnationem, id est ne aliter iudex eum cum quo agitur condemnet, quam si nihil in ea re qua de agitur dolo actoris factum sit; item ne aliter iudex eum condemnet, quam si nullum pactum conuentum de non petenda pecunia factum fuerit.
§ 120. Dicuntur autem exceptiones aut peremptoriae aut dilatoriae.
Inst. 4, 13, 8.
§ 121. Peremptoriae sunt quae perpetuo ualent nec euitari possunt, ueluti quod metus causa aut dolo malo, aut quod contra legem senatusue consultum factum est, aut quod res iudicata est uel in iudicium deducta est, item pacti conuenti quod factum est, ne omnino pecunia peteretur.
Inst. 4, 13, 9.
§ 122. Dilatoriae sunt exceptiones quae ad tempus ualent, ueluti illius pacti conuenti quod factum est uerbi gratia, ne intra quinquennium peteretur; finito enim eo tempore non habet locum exceptio. cui similis exceptio est litis diuiduae et rei residuae. nam si quis partem rei petierit et intra eiusdem praeturam reliquam partem petat, hac exceptione summouetur quae appellatur litis diuiduae; item si is, qui cum eodem plures lites habebat, de quibusdam egerit, de quibusdam distulerit, ut ad alios iudices eant, si intra eiusdem praeturam de his quas distulerit, agat, per hanc exceptionem quae appellatur rei residuae summouetur.
Inst. 4, 13, 10.
§ 123. Obseruandum est autem ei cui dilatoria obicitur exceptio, ut differat actionem; alioquin si obiecta exceptione egerit, rem perdit; non enim post illud tempus, quo integra re 〈eam〉 euitare poterat, adhuc ei potestas agendi superest re in iudicium deducta et per exceptionem perempta.
Inst. l. c.
§ 124. Non solum autem ex tempore, sed etiam ex persona dilatoriae exceptiones intelleguntur, quales sunt cognitoriae: ueluti si is qui per edictum cognitorem dare non potest per cognitorem agat, uel dandi quidem cognitoris ius habeat, sed eum det cui non licet cognituram suscipere. nam si obiciatur exceptio cognitoria, si ipse talis erit, ut ei non liceat cognitorem dare, ipse agere potest; si uero cognitori non liceat cognituram suscipere, per alium cognitorem aut per semet ipsum liberam habet agendi potestatem, et tam hoc quam illo modo euitare 〈potest〉 exceptionem; quodsi dissimulauerit eam et per cognitorem egerit, rem perdit.
Inst. 4, 13, 11.
§ 125. Sed peremptoria quidem exceptione si reus per errorem non fuerit usus, in integrum restituitur adiciendae exceptionis gratia; dilatoria uero si non fuerit usus, an in integrum restituatur, quaeritur.
§ 126. Interdum euenit, ut exceptio, quae prima facie iusta uideatur, inique noceat actori. quod cum accidat, alia adiectione opus est adiuuandi actoris gratia; quae adiectio replicatio uocatur, quia per eam replicatur atque resoluitur uis exceptionis. nam si uerbi gratia pactus sum tecum, ne pecuniam quam mihi debes a te peterem, deinde postea in coutrarium pacti sumus, id est ut petere mihi liceat, et, si agam tecum, excipias tu, ut ita demum mihi condemneris, si non convenerit, ne eam pecvniam peterem, nocet mihi exceptio pacti conuenti; namque nihilo minus hoc uerum manet, etiamsi postea in contrarium pacti sumus; sed quia iniquum est me excludi exceptione, replicatio mihi datur ex posteriore pacto hoc modo si non postea convenit, vt mihi eam pecvniam petere liceret.
Inst. 4, 14, pr.
§ 126 a. Item si argentarius pretium rei quae in auctionem uenerit persequatur, obicitur ei exceptio, ut ita demum emptor damnetur, si ei res quam emerit, tradita est; et est iusta exceptio; sed si in auctione praedictum est, ne ante emptori 〈res〉 traderetur, quam si pretium soluerit, replicatione tali argentarius adiuuatur avt si praedictvm est, ne aliter emptori res traderetvr, qvam si pretivm emptor solverit.
§ 127. Interdum autem euenit, ut rursus replicatio, quae prima facie iusta sit, inique reo noceat. quod cum accidat, adiectione opus est adiuuandi rei gratia, quae duplicatio uocatur.
Inst. 4, 14, 1.
§ 128. Et si rursus ea prima facie iusta uideatur, sed propter aliquam causam inique actori noceat, rursus adiectione opus est qua actor adiuuetur, quae dicitur triplicatio.
Inst. 4, 14, 3.
§ 129. Quarum omnium adiectionum usum interdum etiam ulterius quam diximus uarietas negotiorum introduxit.
§ 130. Videamus etiam de praescriptionibus quae receptae sunt pro actore.
§ 131. Saepe enim ex una eademque obligatione aliquid iam praestari oportet, aliquid in futura praestatione est: ueluti cum in singulos annos uel menses certam pecuniam stipulati fuerimus; nam finitis quibusdam annis aut mensibus huius quidem temporis pecuniam praestari oportet, futurorum autem annorum sane quidem obligatio contracta intellegitur, praestatio uero adhuc nulla est. si ergo uelimus id quidem quod praestari oportet petere et in iudicium deducere, futuram uero obligationis praestationem in integro relinquere, necesse est ut cum hac praescriptione agamus ea res agatvr cvivs rei dies fvit; alioquin si sine hac praescriptione egerimus, ea scilicet formula qua incertum petimus, cuius intentio his uerbis concepta est qvidqvid paret n. negidivm a. agerio dare facere oportere, totam obligationem, id est etiam futuram in hoc iudicium deducimus, et quae ante tem|pus obligatio—|—|NA.
§ 131 a. Item si uerbi gratia ex empto agamus, ut nobis fundus mancipio detur, debemus hoc modo praescribere ea res agatvr de fvndo mancipando, ut postea, si ueli|mus uacuam possessionem nobis tradi, *trad—|—|—NA sumus, totius illius iuris obligatio illa incer|ta actione qvidqvid ob eam rem n. negidivm a. agerio dare facere oportet, per intentionem consumitur, ut postea nobis agere uolentibus de uacua possessione tradenda nulla supersit actio.
§ 132. Praescriptiones autem appellatas esse ab eo, quod ante formulas praescribuntur, plus quam manifestum est.
§ 133. Sed his quidem temporibus, sicut supra quoque notauimus, omnes praescriptiones ab actore proficiscuntur. olim autem quaedam et pro reo opponebantur, qualis illa erat praescriptio ea res agatvr, si in ea re praeivdicivm hereditati non fiat, quae nunc in speciem exceptionis deducta est et locum habet, cum petitor hereditatis alio genere iudicii praeiudicium hereditati faciat, ueluti | cum singulas res petat; est enim iniquum per unius rei—
(25 uersus in C legi nequeunt)—|NA.
§ 134. — intentione formulae det—m est, cui dari oporteat; et sane domino dari oportet quod seruus stipulatur; at in praescriptione de facto quaeritur, quod secundum naturalem significationem uerum esse debet.
§ 135. Quaecumque autem diximus de seruis, cadem de ceteris quoque personis quae nostro iuri subiectae sunt dicta intellegemus.
§ 136. Item admonendi sumus, si cum ipso agamus qui incertum promiserit, ita nobis formulam esse propositam, ut praescriptio inserta sit formulae loco demonstrationis hoc modo ivdex esto. qvod a. agerivs de n. negidio incertvm stipvlatvs est, cvivs rei dies fvit, qvidqvid ob eam rem n. negidivm a. agerio dare facere oportet et reliqua.
§ 137. Si cum sponsore aut fideiussore agatur, praescribi solet in persona quidem sponsoris hoc modo ea res agatvr, qvod a. agerivs de l. titio incertvm stipvlatvs est, qvo nomine n. negidivs sponsor est, cvivs rei dies fvit, in persona uero fideiussoris ea res agatvr, qvod n. negidivs pro l. titio incertvm fide sva esse ivssit, cvivs rei dies fvit; deinde formula subicitur.
§ 115. We have next to examine the nature of Exceptions.
§ 116. Exceptions have been established for the protection of the defendant, as it is often the case that a person is under a liability by the civil law when justice forbids his condemnation.
§ 116 a. If, for instance, I have stipulated that you shall pay me a sum of money, on account of my advancing you the money, and then never advanced it, I can certainly sue you for the money, as by civil law you ought to pay, being bound by the stipulation; but it would be iniquitous that you should be condemned on this account, and therefore it is established that you may defend yourself against my claim by the exception of Fraud (doli).
§ 116 b. Or if I informally agree not to sue you for a debt you owe me, my right to assert in the intentio of the formula that you are bound to pay me nevertheless continues unimpaired, because a mere pact cannot extinguish a civil obligation, but it is held that my action would be defeated by the exception of pact or agreement between the parties.
§ 117. Actions which are not exclusively maintainable against one definite person also admit of exceptions; for instance, if by threats of violence or by fraud you compelled or induced me to convey the ownership of a thing to you by mancipation, and you sue me for it by vindication, I am granted an exception of intimidation or fraud, which, if I prove, I defeat your claim.
§ 117 a. Or if you knew land was an object of litigation, and bought it of a person not in possession, when you claim it of a person in possession you are entirely defeated by means of an exception.
§ 118. Some exceptions are published by the praetor in his edict, while others are granted by him after taking special cognizance of the case, while all are either founded on statute or on what is equivalent to statute, or on the praetor’s jurisdiction.
§ 119. But all exceptions take the form of a supposition contrary to what the defendant affirms; if, for example, the defendant imputes fraud to the plaintiff in that he sues for money which he never advanced, the exception is thus expressed: ‘If in that matter there was and is no fraud of Aulus Agerius.’ Again, if he allege an informal agreement not to claim the money, the exception is thus formulated: ‘If Aulus Agerius and Numerius Negidius did not agree that the money should not be demanded;’ and so in other cases. For every exception is an objection alleged by the defendant, but is so inserted in the formula as to make the condemnation conditional; that is, the judex is instructed not to condemn the defendant unless there has been no fraud of the plaintiff in this transaction, or unless there has been no informal agreement not to sue for the money.
§ 120. Exceptions are either peremptory or dilatory.
§ 121. Peremptory exceptions are such as are always available and cannot be avoided by postponing the action, as the exception of intimidation, or of fraud, or that there has been a contravention of the statute (lex) or of the senatusconsultum, or that the case has been previously decided (exceptio rei judicatae), or brought to trial (exceptio rei in judicium deductae), or that there has been a formless agreement not to sue for the debt (exceptio pacti conventi).
§ 122. Dilatory exceptions are such as merely avail the defendant for a time, such as exception of informal agreement that a debt shall not be sued for within five years, for at the end of five years the exception ceases to be pleadable. Of a similar nature is the exception of divided claim or of the claims left over (litis dividuae et rei residuae). Thus after suing for part of a debt if a man sue for the remainder in the same praetorship, he is barred by this exception (litis dividuae). Or, when a man who has several claims against the same defendant brings some actions and postpones others in order to come before new judices, if within the same praetorship he bring any of the postponed actions, he is met by the exception of claim left over (rei residuae).
§ 123. A plaintiff liable to a dilatory exception should be careful to postpone his action, for if he brings his action and the exception is opposed to it, this is fatal to his claim; for as this has been brought to trial and extinguished by the exception being opposed to it, he has lost his right to sue on it, even after the time has elapsed when if the matter had been res integra he would have escaped from being met by the exception.
§ 124. An exception is considered to be dilatory not only in respect of time but also on personal grounds, such as those which relate to the office of cognitor; for instance, if a person sues by means of a cognitor who is disabled by the edict from appointing one, or if he is able to appoint a cognitor, but appoints some one who is not allowed to serve the office. If the exception to a cognitor (exceptio cognitoria) is pleaded, the principal disabled from appointing a cognitor can himself carry on the action on his own account, or if one person is disabled from acting as cognitor, the principal can carry on the action by employing another, or by suing on his own account, and in either way avoid the exception; but if he disregard the matter and continues to carry on the action by the cognitor, he loses his cause.
§ 125. If a peremptory exception be inadvertently omitted by the defendant, the mistake is set right by the remedy of in integrum restitutio, the defendant being thus allowed to add the exception to the formula; but whether the same is true of a dilatory exception is a matter of controversy.
§ 126. Sometimes an exception, which in the absence of counter allegations seems prima facie to be just to the defendant, is unjust to the plaintiff, and then, to protect the plaintiff, the praetor adds to the instructions a clause called Replication, because it is an undoing and counteraction of the force of the exception. If, for instance, after we informally came to a contrary agreement that I should not sue you for a debt, we agreed that I might be allowed to sue, and then, when I sue you, you plead the informal agreement that you should only be condemned in case there has been no agreement that I should not sue, such exception stands in the way of my claim, for the fact of the first agreement remains true, although we subsequently came to a contrary agreement; but, as it would be unjust that I should be defeated by the exception, I am allowed to reply by pleading the subsequent agreement, thus: ‘If there was no subsequent agreement that I might sue for that money.’
§ 126 a. So if a banker sue for the price of goods sold by auction, he may be met by the exception that the purchaser is only to be condemned in the action if the thing which he has bought has been delivered, and this is prima facie a just exception. But if it was a condition of the sale, that the goods should not be delivered to the purchaser before payment of the purchase-money, the banker is permitted to insert the Replicatio: ‘or if it was a condition of the sale that the goods should not be delivered till the price was paid.’
§ 127. But sometimes a Replicatio, though prima facie just, unjustly injures the defendant; and then, to protect the defendant, a clause has to be added called Duplicatio (Rejoinder).
§ 128. And again, if this, though prima facie just, on some ground or other unjustly injures the plaintiff, for his protection another clause in addition is required called Triplicatio (surrejoinder).
§ 129. And sometimes further additions are required by the multiplicity of circumstances by which dispositions may be successively or contemporaneously affected (Rebutter and Surrebutter).
§ 130. We next proceed to notice the Praescriptio, a clause designed for the protection of the plaintiff.
§ 131. For it often happens that one and the same obligation obliges a person to render some performance to us now and some performance at a future time. For example, when we have stipulated for an annual or monthly payment of a certain amount of money, at the end of a year or month there is an obligation to make to us a corresponding payment of money for this time; but in respect of future years, although an obligation is held to have been contracted, no payment has yet become due. If, then, we wish to claim what is at present due, and to bring the matter to trial, at the same time leaving the claim to future performance of the obligation untouched, we must, in bringing the action, employ this Praescriptio: ‘Let the action relate exclusively to what is now due.’ Otherwise, if we sue without this Praescriptio, the indefinite Intentio, ‘Whatever it be proved that Numerius Negidius ought to convey to or perform for Aulus Agerius,’ brings our whole right to future as well as to present payment before the judex, and, whatever payment may be due in future, we only recover what is due at the time of joinder of issue, and are barred from any subsequent action on account of the remainder.
§ 131 a. So again if we sue upon a contract of purchase (actio ex empto) for the conveyance of land by mancipation, we must prefix the Praescriptio, ‘Let the action relate exclusively to the mancipation of the land,’ in order that subsequently, when we wish vacant possession of the land to be delivered to us, we may be able to sue again on the contract of purchase for delivery of possession; as, without this Praescriptio, all our right under that contract is included in the uncertain Intentio, ‘Whatever on that ground Numerius Negidius ought to convey to or perform for Aulus Agerius,’ and is exhausted by the joinder of issue in the first action; so that afterwards, when we want to sue for the delivery of vacant possession, we have no right of action remaining.
§ 132. The Praescriptio is so named because it precedes the formula, as hardly needs to be stated.
§ 133. At present, as we previously noticed, all praescriptions are initiated by the plaintiff; though formerly some used to be put in as a plea of defence by the defendant, for instance, the Praescriptio, ‘Let this question be tried if it does not prejudice the question of inheritance,’ which clause is now transformed into an exceptio, and is employed when the claimant of an inheritance brings another action which prejudges the right to the inheritance; as, for instance, if he sues for particular things belonging to the inheritance; for it would be unjust [to make the decision of an action respecting an entire inheritance a mere corollary of a decision respecting a less important issue].
§ 134. If an action is brought on a stipulation made by a slave, the intention names the person entitled to recover, that is, the master; while the prescription gives the true history of the facts relating to the contract.
§ 135. What has been said of slaves applies to all persons subject to the power of another.
§ 136. We must further remark, that when a person who has promised something uncertain in amount is sued, the formula should contain a Praescriptio in place of a Demonstratio, thus: ‘Let C D be judex. Whereas Aulus Agerius stipulated for something uncertain from Numerius Negidius, payment for which is due at present, whatever payment in respect of this matter Numerius Negidius ought to make over to or perform for Aulus Agerius, &c.’
§ 137. When a sponsor or fidejussor is sued, in the case of the sponsor the common form of Praescriptio is as follows: ‘let this be the subject of the action that Aulus Agerius has stipulated for something of uncertain amount from Lucius Titius, of which stipulation Numerius Negidius was sponsor in respect of the amount exclusively on account of which performance is now due;’ in the case of a fidejussor: ‘let the subject of the action be this that Numerius Negidius has guaranteed as fidejussor for Lueius Titius something of uncertain amount, in respect of that exclusively which can now be claimed;’ and then follows the rest of the formula.
An explanation of the nature of Exceptions requires to be based on a review of the general incidents of litigation.
In every action there is some contention, allegation, or averment of a plaintiff which is met or encountered by some contention, allegation, or averment of a defendant.
The contention of the plaintiff contained in the intentio is the assertion of some right of the plaintiff: e. g. in a vindicatio or real action, the assertion of dominion or jus in re (si paret illam rem Auli Agerii esse): in a personal action, the assertion of an obligation or jus in personam (si paret Numerium Negidium Aulo Agerio illam rem dare oportere). In an action with a formula in factum concepta there is an implicit or indirect assertion of a right, although explicitly and directly the intentio only asserts the fact which forms the title on which such right is founded. In the wording of the formula the right of the plaintiff appears as an hypothesis; because the formula or instruction to the judex is a hypothetical command, expressed in a sentence of which the intentio forms the antecedent or protasis, and the condemnatio the consequent or apodosis.
The contention of the defendant is either
(A) a negation of the alleged right of the plaintiff, or
(B) an affirmation of a colliding, countervailing right of the defendant whereby the alleged right of the plaintiff is counterpoised and counteracted.
The denial of the plaintiff’s right again admits of division:
1. It is either a simple and absolute negation of the plaintiff’s right: an assertion of its non-existence even in the past: an affirmation of its original nullity; or
2. A qualified or relative negation. Admitting or assuming that it once existed, it is a negation of its present existence: an affirmation of its subsequent destruction, nullification, or avoidance.
Accordingly a defendant had three lines of defence:
I. The assertion of the original nullity of the plaintiff’s right.
This might be either a denial (traverse) of the fact, whether a disposition or a trespass, on which the plaintiff’s right was alleged to be founded (general issue of English law).
Or the denial of the law by which such a right was said to be annexed to such a fact (demurrer of English law). The question whether in the formulary system a pure issue of law was decided by the praetor in jure (denegatio actionis, when the demurrer was sustained; datio actionis, when it was overruled) without reference to a judex, is immaterial to our present purpose, which is merely an exhaustive view of the various modes of defence open to a defendant.
Or it might be an admission of the fact alleged, with an allegation of a further fact whereby the efficacy of the admitted fact to found a right was avoided. E. g. the averment of the infancy or lunacy of a party to a disposition (confession and avoidance of English law, producing a plea in justification).
II. The averment of a subsequent nullification or extinction of the plaintiff’s right, admitted to have previously existed (confession and avoidance, i. e. confession not only of a fact, as above, but of a right, with an averment of its subsequent abolition, producing a plea in discharge), e. g. the averment of solutio, acceptilatio, novatio.
III. The objection of a colliding right of the defendant, whereby the right of the plaintiff is not avoided or extinguished but counter-worked or restrained from operation: e. g. resistance to an alleged right of a stipulator by putting forward as a counter right that the money in consideration of which the stipulation had been entered into had not been paid, or that the defendant had acquired by informal agreement the right of not being sued on the stipulation (confession of a fact or right and, not avoidance but, counteraction). This third mode of defence is called Exceptio. Accordingly exceptio may be rendered a Counteractive or obstructive, as opposed to a Negative or destructive, plea.
The allegation of an exceptio does not preclude the defendant from contesting the intentio: Non utique existimatur confiteri de intentione adversarii quocum agitur, quia exceptione utitur, Dig. 44, 1, 9, and the intentio must be proved by the plaintiff before the defendant is called upon to prove the exceptio, Cod. 8, 35, 9: so that, instead of confession and counteraction, the exception should be described as a supposition or assumption and counteraction of the plaintiff’s right.
1. Examples of the first line of defence are, in a real action, the negation of the traditio on which a plaintiff founds his claim of ownership: in a personal action, negation of the contract or delict on which the plaintiff founds his claim of obligation: in either real or personal action, avoidance of the title alleged by the plaintiff by allegation of the incapacity, as e. g. the lunacy of an alienor or contractor. In hereditatis petitio, the original nullity of a will is pleaded, or the plaintiff’s testamentary title is avoided, by averment of the preterition by the testator of a suus heres. A title by contract may be avoided by indicating a limitation in respect of time or place or condition or alternative.
In general the grounds of the original nullity of a disposition are either:
(a) Want of the conditions necessary to its validity, whether from absence of the personal qualities required in the disposer, or from absence of the intention which is of the essence of a disposition or of any other of the essentialia negotii, or from absence of the prescribed form in which an intention is required to be declared.
(b) Or prohibition of the disposition by positive law.
The antagonism of the law to a particular kind of disposition might express itself in various ways:
(1) It might prohibit a disposition, but if it was entered into and carried out in a particular way neither rescind it nor impose a penalty on account of the prohibition being disregarded. Such a law is perhaps what Ulpian, 1, 1, denominates an imperfecta lex: it is exemplified by lex Cincia, b. c. 204, which prohibited gifts above a certain amount.
(2) It might prohibit a disposition but, instead of declaring it invalid, impose a penalty on the person by whom it was enforced. This was the method of lex Furia testamentaria, which imposes a fourfold penalty on those who take a legacy above a certain sum, and which Ulpian, l. c., quotes as an example of minus quam perfecta lex, 2 § 225, comm.
(3) It might prohibit a disposition but only strike it with a partial invalidity: allowing it to create a valid right, but making such right subject to be deprived of its efficacy by Exceptio. Such an exceptio might be of the weaker class, only barring obligatio, civilis, e. g. exceptio Sc. Macedoniani, 3 §§ 90-91, comm.; or of the stronger class, barring both civilis and naturalis obligatio; e. g. exceptio Sc. Vellaeani, 3 §§ 110-127, comm.
(4) It might declare the prohibited disposition to be entirely invalid. Such an ordinance is called by Ulpian perfecta lex, and is exemplified in lex Falcidia, 2 § 227.
Informality, e. g. omission to institute or disinherit suus heres, mancipation without the required number of witnesses, donation without record (insinuatio), produces Nullification.
The second of these paths of prohibition ceased to be trodden after an interpretative law of Theodosius II, a. d. 439. A law prohibiting municipal senators (curiales) from the management (procuratio) of other persons’ estates had been evaded by means of simulated leases (conductio), Cod. 4, 65, 30. In consequence of this, Theodosius enacted, in substance, that any prohibitive law, even though it contained no express terms of nullification, should be interpreted to be lex perfecta; and that any simulated dispositions, whereby a law was attempted to be evaded, should be null and void: Nullum enim pactum, nullam conventionem, nullum contractum inter eos videri volumus subsecutum, qui contrahunt, lege contrahere prohibente. Quod ad omnes etiam legum interpretationes tam veteres quam novellas trahi generaliter imperamus, ut legis latori, quod fieri non vult, tantum prohibuisse sufficiat, cetera quasi expressa ex legis liceat voluntate colligere: hoc est ut ea quae lege fieri prohibentur, si fuerint facta, non solum inutilia, sed pro infectis etiam habeantur, licet legis lator fieri prohibuerit tantum nec specialiter dixerit inutile esse debere quod factum est. Sed et si quid fuerit subsecutum ex eo vel ob id, quod interdicente lege factum est, illud quoque cassum atque inutile esse praecipimus, Cod. 1, 14, 5. So in English law a contract is by implication forbidden and void, when a statute, without saying that the contract shall be void, inflicts a penalty on the maker; for a penalty implies a prohibition. Pollock, Contract, p. 293, 7th ed. In some cases statutes prohibited transactions of a particular kind without however expressly declaring them void. In such cases the transaction was not ipso jure void, but the person sued on it could plead an exceptio founded on the statute. Thus the Sc. Macedonianum and Sc. Vellaeanum render the dispositions which contravene them liable to Exceptio, which is inconsistent with nullification.
2. Examples of the second line of defence are in real action the averment of a subsequent loss of ownership by dereliction or usucapion or alienation, or loss of servitus by non-usus: in hereditatis petitio the avoidance of a valid will by agnatio postumi or by the execution of a later will: in personal action the extinction of a debt by solutio, acceptilatio (formal release), novatio.
In general, the avoidance of a right may either be produced by the very disposition by which the right is originated, viz. by the fulfilment of a resolutive condition which it contains: or by something external, e. g. by judgment, when res judicata operates not as a counteractive but as an extinctive plea, 3 § 180: or by a contrary disposition, e. g. dereliction of property, repudiation of the delatio of legatum or hereditas. In respect of contrary dispositions the general rule obtains that to produce complete invalidity the second disposition must be of similar form to the first; otherwise it only produces incomplete invalidity (exceptio, a counteractive plea): Nihil tam naturale est, quam eo genere quidque dissolvere, quo colligatum est: ideo verborum obligatio verbis tollitur: nudi consensus obligatio contrario consensu dissolvitur, Dig. 50, 17, 35. Thus, a stipulation is extinguished by a formal release (acceptilatio), but only counteracted by an informal release (pactum de non petendo). Furtum and injuria were extinguished by nudum pactum, in spite of the dissimilarity of disposition and tort: offence and reconciliation, as Kuntze observes, § 632, being regarded as contraries. Quaedam actiones per pactum ipso jure tolluntur, ut injuriarum, item furti, Dig. 2, 14, 17, 1. An informal release followed by an informal revocation (pactum de petendo) is not extinguished but only counteracted, § 116 a, and Dig. 2, 14, 27, 2.
Let us consider what is the effect when a disposition originally valid is subsequently followed not by a contrary disposition but by some other circumstance of an adverse or inconsistent character. Some jurists laid down a rule that any circumstances which would have prevented such a disposition having a validity, if they had been present when the disposition was made, invalidate it if they occur subsequently. Etiam ea quae recte constiterunt, resolvi putant, cum in eum casum reciderunt, a quo non potuissent consistere, Dig. 45, 1, 98, pr. E. g. a marriage was dissolved when one of the parties subsequently lost civitas or libertas. But the rule cannot be stated in this broad way: Non est novum, ut quae semel utiliter constituta sunt, durent, licet ille casus exstiterit, a quo initium capere non potuerunt, Dig. 50, 17, 85, 1. Etsi placeat extingui obligationem, si in eum casum inciderit, a quo incipere non potest, non tamen hoc in omnibus verum est, Dig. 45, 1, 40, 2. E. g. a contract is not dissolved by the lunacy of one of the parties. Similarly a Roman testament loses its validity when a testator loses civitas or libertas, but not when he becomes a lunatic. It seems then that no general rule can be applied.
A change in the opposite direction, i. e. from circumstances inconsistent, to circumstances consistent, with a disposition, will not, as a general rule, validate the disposition, or produce what is called convalescence: Quod initio vitiosum est, non potest tractu temporis convalescere, Dig. 50, 17, 29. Omnia, quae ex testamento proficiscuntur, ita statum eventus capiunt, si initium quoque sine vitio ceperint, Dig. 50, 17, 201. Catoniana Regula sic definit, quod, si testamenti facti tempore decessisset testator, inutile foret, id legatum, quandocumque decesserit, non valere, Dig. 34, 7, 1, pr. (cf. 2 § 244). But though this generally applied to unconditional legacies, it was not true of institutions of an heir (hereditas), Dig. l. c. 3, nor of all other dispositions. (It is to be noticed that if a disposition was originally invalid on account of want of capacity of a party to it the defect is not cured by the party subsequently becoming capable, a principle equally applicable in the case of the heir as in that of a legatee, cf. 2 § 123, Inst. 2, 13, pr.) E. g. when a non-proprietor alienes and subsequently becomes proprietor, the alienation, originally invalid, convalesces, and the purchaser becomes proprietor without a new tradition, Dig. 41, 3, 42, Windscheid, 1 § 83.
The removal of an exception, e. g. the voluntary ratification of a contract that was originally vitiated by force or fraud, has practically the same effects as convalescence; but cannot properly be called convalescence, because here the disposition, which is supplemented by a subsequent agreement between the parties, is not originally null and void, but only liable to counteraction. Accordingly in such a case the plaintiff’s right would require to be enforced by Replicatio.
3. Exceptions or counteractive pleas, which are the defendant’s third means of defence, are either based on the substantive code or on the code of procedure.
(a) Examples of exceptions based on the code of procedure are: that of the case having already reached the stage of Litis contestatio (exceptio rei in judicium deductae): the objection to a minor issue being tried, while a connected major issue from which it cannot be separated is undecided (exceptio praejudicialis), e. g. exceptio quod praejudicium non fiat hereditati: objection to the appointment of a particular procurator by the plaintiff (exceptio cognitoria, procuratoria), § 124.
(b) Examples of exceptions based on the material code are:
In the department of domestic or family law, the exception protecting freedmen against the oppression of their patrons, that is, against a penal bond which a patron had forced his freedman to enter into as security for his good conduct (exceptio onerandae libertatis causa), Dig. 44, 5, 1: or protecting marital rights against paternal rights; i. e. protecting the right of the husband to the society of the wife against her father who endeavours by exercising his patria potestas to break up a united household, Dig. 43, 30, 1, 5.
In the department of law relating to real rights the defendant in a vindicatio by putting forward the exceptio rei venditae et traditae may counterpoise the plaintiff’s quiritary title by objecting his own bonitary title, see 2 §§ 40-61, comm.: or he may allege as a counteracting right against the plaintiff’s dominion a jus in re, e. g. pignus, Dig. 10, 3, 6, 9, or superficies, Dig. 43, 18, 1, 4. In the actio Publiciana when the purchaser from a non-proprietor endeavours to recover the thing from the true proprietor, the defendant may oppose ownership to bona fide acquisition of possession by putting forward the exceptio dominii: Si ea res possessoris non sit, Dig. 6, 2, 17, said to be the only exception which in form alleges a right of the defendant, whereas all other exceptions, though they too are all virtually and in effect allegations of a right, in external form are allegations of a fact.
In the department of obligation, as well as of real right, the defendant’s counteractive plea may be an allegation of Force or Error or that of obligation Formless release (exceptio pacti conventi). Force and Error, as we have seen, may make a disposition voidable, not void.
Although Exceptio is always the allegation of a right of the defendant, the right which it alleges, though in other respects of the same nature as the right of a plaintiff, is not always sufficiently energetic to form a ground on which an action might be maintained. We have an instance of this inferior energy in the obligatio naturalis which is generated by nudum pactum, of which we read: Igitur nuda pactio obligationem non parit sed parit exceptionem, Dig. 2, 14, 7, 4.
The collision of the rights of the plaintiff and defendant, as expressed in the intentio and exceptio, arises in the majority of cases from the opposition of equity (aequitas) to law, jus strictum, or of jus praetorium to jus civile.
Instances of exceptio founded on jus praetorium are: Exceptio doli, metus, pacti conventi, § 116, hypothecaria, jurisjurandi.
It is, however, erroneous to suppose, as was done in the first edition, that, anomalies disregarded, exceptio is always a plea based on the equitable or praetorian code. This is contrary to the statement of Gaius, § 118, that exceptio may be based on jus civile, and refuted by the following examples of exceptions based on civil law: exceptio dominii, the allegation of civil dominion by the true proprietor who is defendant in an actio publiciana brought by a person who acquired possession from a non-proprietor: exceptio legis Plaetoriae, the allegation of minority. [The lex Plaetoria did not make minors incapable of contracting an obligation, but treated any taking advantage of their inexperience as a ground for relief: otherwise the contracts of minors, like those of impuberes, would have been null and void as against them from the first, and its averment would not have fallen as an exceptio under the third mode of defence, but, as a negation, under the first, like the averment of being under the age of puberty, 1 §§ 197-200, comm.]: exceptio legis Cinciae, Frag. Vat. 266, 310, protecting a donor: exceptio nisi bonis cesserit, arising from the lex Julia, Inst. 4, 14, 4, protecting an insolvent who has made cessio bonorum: exceptio Sc. Macedoniani, protecting filiusfamilias against usurers: exceptio Sc. Vellaeani, protecting women from the consequences of intercessio: exceptio Sc. Trebelliani, protecting an heir who is merely a trustee to convey the inheritance to a beneficiary from the pursuit of the creditors, Dig. 15, 2, 1, 8, see 2 § 253.
Let us examine the meaning of ipsum jus as it occurs in the opposition of actio ipso jure nulla (a right avoided by a destructive plea) and actio ope exceptionis infirmata (a right counteracted by an obstructive plea) or other equivalent expressions.
Ipsum jus sometimes denotes jus civile as opposed to jus praetorium, e.g. in the phrase actiones quae in aliquem aut ipso jure conpetunt aut a praetore dantur, § 112: but this cannot be its signification here; for the opposition between destruction and obstruction, avoidance and counteraction, is irrespective of the opposition between jus civile and jus praetorium. In a case of avoidance, the plaintiff’s claim may be derived not from jus civile but from jus praetorium, e. g. in actio institutoria, § 71, hypothecaria, publiciana: and in a case of counteraction the defendant’s plea, as we have seen, may be derived not from jus praetorium but from jus civile, though such a plea or exception originated and was principally allowed by the praetor for the purpose of giving effect to grounds of defence which were not recognized by strict law. Cf. Sohm, § 53.
Ipsum jus as contrasted with exceptio denotes the totality of the conditions comprehended in the intentio—the totality of the elements, positive and negative, that constitute the plaintiff’s right: in which definition positive elements are the conditions which call a right into existence; negative elements are the absence of any circumstance which could extinguish an existent right or dismiss it into non-existence. Exceptio, on the contrary, denotes something external to the sphere of the conditions of existence of the plaintiff’s right; denotes the existence of an independent adverse right of the defendant. Actio ipso jure nulla will denote a right null and void by the conditions contemplated in the intentio and frequently expressed by the word oportere: actio exceptionis ope infirmata a right defeated by conditions external to the intentio. The words: ipso jure, then, might be paraphrased by the words: si intentionem tantum spectes; or treated as equivalent to: ipsius jure or actoris jure.
The first mode of defence mentioned above denies the existence of one of the positive constituent elements of the plaintiff’s right.
The second mode denies the existence of one of the negative constituent elements of the plaintiff’s right.
The third mode alleges a countervailing right, vested in the defendant, and generated by a title external to the sphere of the conditions which constitute the right of the plaintiff as expressed in the intentio.
In some cases the partition which separates avoidance (ipsum jus) from counteraction (ope exceptionis) will be extremely thin, and will consist in some arbitrary appointment of positive law. E. g. litis contestatio in judicium legitimum produced avoidance, while litis contestatio in judicium imperio continens only produced counteraction, 3 § 181.
Some extinctions (ipso jure) of a plaintiff’s right, where we might have expected only counterpoises (ope exceptionis) or counter rights of a defendant, are to be explained by the fact that there was a period when Roman procedure did not recognize Exceptions—defences by positive averment of counterpoising rights—(nec omnino ita, ut nunc, usus erat illis temporibus exceptionum, § 108); but required every defence to be in the form of a simple negation—allegation of the original or subsequent nullity of the plaintiff’s claim. Unlike proceedings by Formula, which besides the ipsum jus of the plaintiff, investigated the counter-claims (Exceptio) of the defendant, statute-process strictly confined itself to a direct affirmation or denial of the plaintiff’s right. At such a period one of the devices for giving to the defendant the means of defence which he afterwards had in the form of Exceptio was the introduction into the Substantive code of certain principles respecting the nullification of rights which practically answered the purpose of the Exceptions afterwards introduced into the Adjective code.
An example of such principles is the rule: (Necessariae) impensae dotem ipso jure minuunt, Dig. 23, 4, 5, 2. A husband when compelled to restore the dower to a divorced wife was fairly entitled to deduct what he had been obliged to spend for its conservation during the subsistence of matrimony. To enable the husband to do this the law extinguished the wife’s right to an equivalent portion of the dower, and thus protected the husband as effectually as if it had given him an Exceptio asserting an independent right of retention. (It is to be noticed that the actio rei uxoriae for the recovery of dos, being regarded as an actio bonae fidei, empowered the judex to take impensae necessariae into account without any exceptio being added to the formula, cf. Sohm, p. 487.) So the rule: Legata pro rata portione per legem ipso jure minuuntur, Dig. 35, 2, 73, 5, gave to an heir the right of retaining his Falcidian fourth as effectually as he could have done by pleading an Exceptio legis Falcidiae. Again the rule: Ipso jure minutum esse peculium, Dig. 19, 1, 30, pr., gave to an heir, when a slave and his peculium had been bequeathed to a legatee, the right of deducting whatever the slave owed by naturalis obligatio to the testator as effectually as if he had been allowed to plead the debt of the slave in an Exceptio, cf. § 73.
It is remarkable that a husband’s right, § 44, comm., to deduct from the dower all utiles as opposed to necessariae impensae was protected by an Exceptio, Dig. 25, 7, 1. As there seems to be no valid reason for a different treatment of utiles impensae and necessariae impensae, the explanation why the deduction of necessariae was effectuated by Extinction and that of utiles by Exception can only be found in the hypothesis that the former right was recognized by the law before, the latter after, Exceptions had been introduced into the Adjective code. Ihering, § 52.
The statement which we meet with in our sources that compensatio or set-off operates ipso jure is one which commentators have been much embarrassed to explain. (Dig. 16, 2, 21 (Paulus) Posteaquam id quod invicem debetur ipso jure compensari, ib. 4 and 10. Inst. 4, 6, 30 ut actiones ipso jure minuant. Cod. 4, 31, 14, pr. Compensationes ex omnibus actionibus ipso jure fieri sancimus.) It is evident that compensation does not operate of itself, but must be expressly pleaded by the defendant, if he so chooses. In actiones stricti juris, though not in actiones bonae fidei, §§ 61, 63, an exceptio had to be inserted in the formula to enable the judex to take compensatio into account. The exceptio which in this restricted form seems to have been first granted by a rescript of Marcus Aurelius was peculiar in this, that its object might be not the absolution of the defendant, but only the diminution of the condemnation. Ipso jure under these circumstances can, it would seem, only mean that if compensatio is successfully pleaded, the debt is regarded as having been pro tanto extinguished from the time when the set-off came into existence, just as the dos would be considered to have been diminished from the time when the impensae were incurred. It is probable, however, that by the law of Justinian the judex had free power of recognizing compensatio in actions of all kinds and not only in actiones bonae fidei. Cf. §§ 61-68, comm., Dr. Moyle’s note, Inst. l. c., Sohm, § 89.
Exceptions are capable of various classifications.
As a Negation of the plaintiff’s right forms either what we have called the first mode of defence or the second, according as it is founded on a fact contemporaneous or subsequent to the plaintiff’s title, so Exceptions rest on facts either contemporaneous or subsequent to those which found the claim of the plaintiff. Examples of contemporaneous exceptions are exceptio rei venditae ac traditae, exceptio metus, averring that a disposition on which the plaintiff relies was originally a valid praetorian title, or that it was a disposition originally vitiated by duress. Examples of subsequent exceptions are the exceptions rei judicatae, longi temporis possessionis, pacti conventi de non petendo. In a Negative averment the subsequent event is ground of avoidance: in an exception the subsequent event is ground of counteraction.
Some exceptions can only be employed by a particular defendant (exceptio personae cohaerens): an example of this is beneficium competentiae, which cannot be pleaded by the debtor’s sureties or heirs. Others, and the great majority, are available to all defendants without distinction (exceptio rei cohaerens).
Some exceptions are only available against a particular plaintiff (exceptio in personam). E. g. the exceptio doli, Si in ea re nihil dolo malo actoris factum est, only lies against the person by whose fraud a disposition was vitiated, his donees and universal successors, in so far as they have been enriched by the dolus; not against a singular successor like a vendee (but the assignee of an action is subject to exceptio doli which was maintainable against assignor). The majority are equally available against all the world (exceptio in rem); e. g. the exceptio metus, which is expressed impersonally, Si in ea re nihil metus causa factum est, and lies against all whose title depends on the vitiated disposition.
The counteraction of the plaintiff’s right by exceptio has different degrees of potency. Some exceptions have the stronger effect and deprive the plaintiff’s right of all efficacy, barring all obligatio both naturalis and civilis: others have the weaker effect, and though they deprive the plaintiff’s right of obligatio civilis, leave it invested with obligatio naturalis. Instances of the weaker effect are the exceptio Sc. Macedoniani, Dig. 14, 6, 10, and beneficium competentiae, Dig. 12, 6, 8. 9. Instances of the stronger effect are exceptio Sc. Vellaeani, Dig. 12, 6, 40, pr.; exceptio doli, Dig. 12, 6. 65, 1; exceptio metus, Dig. 12, 5, 7; exceptio pacti, Dig. 12, 6, 40, 2. The effect of the exceptions of res judicata and prescription or lapse of time, as we have already stated, is controverted: but they both apparently have the stronger operation, except that in real actions prescription or limitation does not entirely annul the right of the proprietor, and prescription of pendency, §§ 104, 105, leaves a debtor subject to naturalis obligatio.
In respect of the burden of proof (onus, necessitas probationis) the following are the leading rules:
The party who asserts a right must prove it, whether the title by which it was conferred is an affirmative or negative fact: Ei incumbit probatio qui dicit non qui negat, Dig. 22, 3, 2. Hence the plaintiff, as a general rule, must prove the intentio: Semper necessitas probandi incumbit illi qui agit, Dig. 22, 3, 21: Actore non probante, qui convenitur, etsi nihil ipse praestat, obtinebit, Cod. 2, 1, 4: and the defendant must prove the exceptio: In exceptionibus dicendum est reum partibus actoris fungi oportere, ipsumque exceptionem velut intentionem implere, Dig. 22, 3, 19, pr.
But, further, in the second line of defence the proof of the matter alleged in avoidance is incumbent on the defendant: ut creditor, qui pecuniam petit numeratam, implere cogitur, ita rursum debitor, qui solutam affirmat, ejus rei probationem praestare debet, Cod. 4, 19, 1. In a passage of the Digest this rule is combined with the preceding: Secundum generalem regulam, quae eos qui opponendas esse exceptiones adfirmant, vel solvisse debita contendunt, haec ostendere exigit, Dig. 22, 3, 25, 2.
Moreover in the first line of defence, when it assumes the form of a confession and avoidance; e. g. an averment of the lunacy of a testator; in other words, when it is contended that a disposition, in consequence of some exceptional circumstance, had not the validity which the law presumes; the proof of this avoiding allegation is on the defendant, Cod. 6, 36, 5. Bethmann-Hollweg, § 109.
In the middle ages the true exceptio or counteractive plea was called exceptio juris: the first line of defence, when it assumed the form of an avoidance, and the second line of defence, whatever its special nature, were called inappropriately exceptio facti. This shows that the true nature of exceptio had been forgotten: the similarity, however, of the three lines of defence in respect of the burden of proof is probably the reason why they were all called exceptio.
The necessity in order to save the plaintiff from being taken by surprise of disclosing by the pleadings whether the defendant relies on the first or second line of defence, e. g. whether he denies that a debt ever existed, or maintains that it was extinguished (for which disclosure there was no provision in procedure by formula), is probably the reason why the second line of defence as well as the third has been treated as an exceptio (Einrede) in modern Germany. (Cf. Civil-prozessordnung (146, 276), though in the Burgerliches Gesetzbuch the word ‘Einrede’ is used exclusively for pleas constituting the third line of defence, pleas constituting the second line of defence being called ‘Einwendungen’ (see 202 (2) and 334, 404, 417, 774, 784, 796). The terminology of the B. G. B., as thus indicated, was, we are informed, deliberately adopted by its authors.
The distinction between counteractive and destructive pleas does not seem to have had much influences on English pleading. Stephens in his Commentaries, V. 10, admits that all pleas are not necessarily either traverses or pleas in avoidance; and, as an instance of a plea that falls under neither class, mentions pleas by way of estoppel. One species of estoppel, estoppel by record, is the Roman exceptio rei judicatae: so that here we find recognized a third class of plea under which we might have expected that other averments analogous to other Roman exceptions would be ranged. We find, however, the pleas of the statute of limitations (prescription) and of set-off (compensatio) given as instances of pleas in discharge, i. e. of what we have called the second line of defence, or pleas in avoidance. [For the general theory of Exceptio, see Savigny, §§ 202, 203, 226-229. According to the prevalent opinion of more recent writers the use of the exceptio is not confined to cases in which the defendant may be said to have a counteracting or countervailing right, as our commentary following Savigny supposes, but has a wider application. Cf. Keller, Civil Process, § 34, n. 368, and the literature there cited.]
I proceed to notice some of the points incidentally mentioned by Gaius.
The denial by a defendant that he had received money from a plaintiff would not, in an actio Mutui, appear on the face of the formula: as a simple Negation of the plaintiff’s right, it would fall under the first line of defence. It would only assume the form of Exceptio doli, § 116 a, in an action brought on a Stipulation. Here the promise of the defendant to repay would establish a right of the plaintiff: but the absence of a previous payment by the plaintiff would give the defendant a countervailing right, to be alleged in an exceptio doli, which as in other cases of exception he would have to prove. It was, however, a usual practice, in the time of the classical jurists and subsequently, for a borrower of money, whether under a contract of stipulation or an informal contract, to give the lender a written document, called cautio, as an acknowledgment of his having received it. A defendant, who had given such an acknowledgment without having in fact received the money would defend himself in all cases by the exceptio doli or exceptio non numeratae pecuniae, as it came to be called. It was provided by a Constitution of the Emperors Severus and Antoninus, a. d. 215, that if an action was brought on such a cautio, and the exceptio non numeratae pecuniae was pleaded in defence, the burden of proving that the money, which was claimed, had been paid should be on the plaintiff instead of being, as in other cases of exception, on the defendant, Cod. 4, 30, 3. But, as we have seen, the rule was established that if the person who had given the cautio allowed a certain period to elapse from the time when it was given, the acknowledgment should be considered presumptive evidence of the money having been received. The period was first fixed at one year, then extended by Diocletian to five years, and finally reduced by Justinian to two, Cod. 4, 30, 14. Cf. Inst. 3, 21, and see 3 §§ 97-109, comm.
§ 117. Intimidation (metus) was ground to support not only an exception, but also an action and an in integrum restitutio. The words of the edict: Ait praetor: Quod metus causa gestum erit ratum non habebo, Dig. 4, 2, 1, ‘Duress shall be a ground for rescinding any disposition,’ are in rem scripta that is general or impersonal: they are not merely aimed against the intimidator, but promise a remedy even against innocent persons who may have come into possession of property previously acquired by reason of intimidation. The actio quod metus causa was an actio arbitraria, § 47, comm., and during one year the defendant was condemned to pay fourfold damages if he did not make restitution according to the order of the judex: after that it only lay for simple damages. The formula may be thus restored: Si paret metus causa Aulum Agerium fundum illum Numerio Negidio mancipio dedisse neque ea res arbitrio tuo restituetur neque plus quam annus est cum experiundi potestas fuit, quanti ea res erit, tantae pecuniae quadruplum judex Numerium Negidium Aulo Agerio condemnato: Si non paret absolvito. Lenel, § 39, 3. It was a personal action, and therefore in case of the defendant’s insolvency was not an adequate remedy, as the plaintiff then would only share the assets with the other creditors of the defendant. To enable the plaintiff to bring a real action it would be necessary for him to obtain from the praetor the extraordinary relief of in integrum restitutio, a rescission of the forced alienation. He then might bring a vindicatio, which would separate his property from the assets of the defendant over which other creditors had a claim, 3 §§ 77-81, comm.
Dolus, like metus, gave rise to an exceptio, § 117, an actio arbitraria and in integrum restitutio. The actio de dolo malo could only be brought against the party by whose dolus the injury had been caused or his heirs; its object was to condemn the defendant in damages if he did not make restitution, and it originally was prescribed in a year. Constantine, a. d. 319, extended the period of prescription to two calendar years, biennium continuum, Cod. 2, 20, 8. After that period the plaintiff had only an actio in factum for damages to the amount that the defendant had gained by the fraud. The actio de dolo, as also the actio quod metus causa, could only be brought if the plaintiff could not obtain redress by any other action (si alia actio non erit), that is to say they were subsidiary actions.
§ 119. In the exceptio doli the words: Si in ea re nihil dolo malo Auli Agerii factum sit, allege dolus praeteritus, i. e. assert that the right of the plaintiff was vitiated in its origin: the words: neque fiat, allege dolus praesens, i. e. assert that the right of the plaintiff, though originally clear of dolus, is now in collision, to the knowledge of the plaintiff, with a right of the defendant, e. g. the right of compensatio. Dolo facit quicumque id, quod quaqua exceptione elidi potest, petit: nam et si inter initia nihil dolo malo facit, attamen nunc petendo facit dolose, nisi si talis sit ignorantia in eo, ut dolo careat, Dig. 44, 4, 2, 5. The actio de dolo was famosa, i. e. it involved infamia.
The exceptio doli was in jus concepta, bringing both questions of law and fact to an issue, but an exceptio in factum might be substituted for it, e. g. exceptio non numeratae pecuniae, and for any other plea an exceptio doli might be used, if at the time when action was brought the plaintiff knew of its validity. The exception of fraud, being discreditable to the plaintiff, could not be alleged against a parent or patron, but had to be converted into an exception of fact, Dig. 44, 4, 4, 16. Cf. Cic. ad Attic. 6, 1, 15. So again if a neighbour out of humanity enabled a slave to escape from the cruelty of his master, he was liable to an action in factum concepta, not doli. Dig. 4, 3, 7, 7.
Bona fides implies the absence of dolus: so far then as the exceptio merely empowered the judex to take into consideration equitable grounds of defence, no exceptio doli was necessary in actions bonae fidei, for here the commission of the judex expressly authorized him in the intentio of the formula to decide upon equitable grounds (ex bona fide): Judicium fidei bonae est et continet in se doli mali exceptionem, Dig. 30, 84, 5: Cum enim doli exceptio insit de dote actioni, ut in ceteris bonae fidei judiciis, Dig. 24, 3, 21. This, however, does not apply to the exceptio rei in judicium deductae or rei judicatae and others like exceptio cognitoria and litis dividuae, which are founded rather on special considerations than on those relating to bona fides, and had to be expressed in the formula, if they formed the defence of the defendant, even in actions bonae fidei. (Cf. Keller, Civil Process, § 35.)
Cicero gives the form of exceptio doli contained in the edictum Asiaticum of Q. Mucius: Extra quam si ita negotium gestum est ut eo stari non oporteat ex fide bona, Ad Att. 6, 1, ‘unless the circumstances of the disposition make its enforcement inconsistent with the principles of good faith.’ This seems to be impersonally framed, but the formula, as stated, may be incomplete. (Cf. Dig. 44, 4, 2, 1.)
The exceptio doli from the comprehensiveness of its meaning, does not sufficiently disclose the line of defence which a defendant intends to pursue: accordingly, in Germany, the fact which constitutes the dolus is always required to be specified.
Property became litigious (res litigiosa) as soon as it was the subject of litis contestatio. Originally it was only on the side of the plaintiff (non-possessor) that alienation was prohibited, cf. § 117 a. An edict of Augustus prohibited the alienation of litigated Italic land in terms which perhaps suggest the reason why an exceptio was necessary in order to repel the claims of the alienee. Qui contra edictum divi Augusti rem litigiosam a non possidente comparavit, praeterquam quod emptio nullius momenti est, poenam quinquaginta sestertiorum fisco repraesentare compellitur: res autem litigiosa videtur, de qua apud suum judicem lis delata est: sed hoc in provincialibus fundis prava usurpatione optinuit. Fragmentum Ulpiani, de jure fisci, § 8. ‘If, in contravention of the edict of Augustus, an object of litigation is purchased of a vendor not in possession, the sale is not only void but the purchaser forfeits fifty sestertia to the treasury. A thing seems to be an object of litigation, if an action concerning it has been submitted to a judex. This law has, however, been improperly applied to lands in the provinces.’ Italic soil was aliened by mancipatio, 2 § 27; and mancipation of land transferred ownership in the property without delivery of possession. The edict only declared the contract of sale (emptio) void, not the mancipatio. To defeat, therefore, the vindicatio of the purchaser who had become owner, the possessor (defendant in the original suit) required the protection of an exceptio. Alienation by a defendant in possession appears not to have been prohibited, because, the condemnatio in any suit being pecuniaria, it was held that the defendant could not injure the plaintiff by alienation of the specific thing. Cf. Roby, p. 406.
At a later period, when execution in a suit might consist in the compulsory delivery of the specific thing, alienation by a defendant was recognized as an injury to the plaintiff. Accordingly Justinian’s code, 8, 36, 2, not only avoided every alienation by a plaintiff of the right of ownership or right of action that he claims, but also alienation by a possessing defendant of property claimed of him by vindicatio, Cod. 8, 36, 5, Nov. 112, 1. If the purchaser has notice of the litigiosity, he forfeits the purchase money to the fiscus, and the vendor forfeits an equal sum. If the purchaser was without notice, he recovers his purchase money and one-third additional from the vendor, who further forfeits two-thirds to the treasury. Vangerow, § 160.
Compare the prohibition of Champerty and Maintenance in English law. Thus buying or selling a disputed title to land not in possession of the sender is Champerty. Whether the title of the vendor be bad or good, if the land is held adversely to him, such a sale is void. Choses in possession (movables) and choses in action may be sold after the institution of a suit, unless the assignment savour of Maintenance, i. e. be made with the design of fomenting litigation.
§ 120. Justinian, Inst. 4, 13, 8, uses the term temporalis as equivalent to dilatoria, but then an ambiguity arises: for temporalis exceptio sometimes denotes the plea of prescription (longi temporis exceptio), e. g. Cod. 12, 30, 52: and the plea of prescription is perpetua, or peremptoria, i. e. not a temporary or dilatory one.
§ 123. The statement of Gaius, that a dilatory exception, if sustained, was fatal to the claim of the plaintiff, as his right of action was consumed, can scarcely have been true of exceptio fori, and exceptio praejudicialis. When a court is incompetent to try a cause or postpones the trial, the instructions to the judge: Si non paret, absolve, are inapplicable. The cause is not heard, and the right of action cannot have been consumed when it has never been exercised.
In the legislation of Justinian, no dilatory exception was a bar to a subsequent institution of a suit. Savigny, § 227.
§ 124. The disability of an infamous person (infamis) to appoint a procurator or to discharge the office of procurator was abolished by Justinian, Inst. 4, 13, 11.
§ 126. The following instances of Replicatio may be found in the Digest. A person who has appointed two general agents of all his property does not give authority to one of them to sue the other, unless he does so in express terms. The procurator who has such special authority will meet the exceptio of the other procurator, alleging general agency, ‘si non mihi mandatum sit, ut a debitoribus peterem,’ by a replicatio alleging special instructions to sue him: ‘Aut si mihi mandatum est, ut a te peterem,’ Dig. 3, 3, 48
If a woman acting as guarantor in contravention of Sc. Vellaeanum sell and deliver her land to the creditor, she can recover it back by a real action; and meet the exceptio alleging sale and delivery by a replicatio alleging the contravention of Sc. Vellaeanum: ‘Aut si ea venditio contra senatusconsultum facta sit,’ Dig. 16, 1, 32, 2.
Another text observes that an equality of delict on the part of plaintiff and defendant is more adverse to the plaintiff than to the defendant (Cum par delictum est duorum, semper oneratur petitor et melior habetur possessoris causa), e. g. an exceptio of the defendant alleging fraud on the part of the plaintiff (exceptio doli) is not allowed to be met by a replicatio of the latter alleging fraud on the part of the defendant of the following kind: ‘Aut si rei quoque in ea re dolo actum sit,’ Dig. 50, 17, 154.
The Replicatio, then, if we trust these examples, was a proposition beginning with the words ‘Aut si’ (cf. § 126 a): and, if this was universal, we must suppose that the expression of Gaius, Si non postea convenerit ut eam pecuniam petere liceret, § 126, only gives the substance of the replicatio, not the precise terms in which it was introduced by the praetor into the formula.
Ulpian, Dig. 44, 1, 2, 3, and Julian, Dig. 27, 10, 7, 1, 2, differ from Gaius in the use of the words Duplicatio and Triplicatio. They identify Duplicatio with Replicatio, counting the pleas from the exceptio; and consequently use Triplicatio to signify an averment which Gaius would call Duplicatio. (For examples of formulae containing Exceptio, Replicatio, Duplicatio, see Keller, C. P., § 37.)
§ 130. The Praescriptio in favour of the plaintiff became obsolete as soon as the old doctrine respecting litis consumptio was abrogated and superseded by more rational rules respecting the operation of Res judicata, §§ 110-113, comm. In the Digest praescriptio has become a mere synonym of exceptio.
§ 131. In connexion with the praescriptio: Ea res agatur cujus rei dies fuit, we may quote an anecdote which Cicero puts into the mouth of Crassus in illustration of the gross ignorance occasionally displayed by the Roman advocate: Quid? his paucis diebus nonne, nobis in tribunali Q. Pompeii praetoris urbani familiaris nostri sedentibus, homo ex numero disertorum postulabat ut illi unde peteretur vetus atque usitata exceptio daretur, cujus pecuniae dies fuisset? quod petitoris causa comparatum esse non intellegebat: ut [ne?] si ille infitiator probasset judici ante petitam esse pecuniam quam esset coepta deberi, petitor rursus quum peteret exceptione excluderetur, quod ea res in judicium antea venisset, De Oratore, i. 37. ‘A few days ago when I was sitting as assessor of the praetor urbanus, the defendant’s advocate pressed the praetor to insert in the formula the old and common exception: in exclusive respect of the payment already due, not knowing that it only protected the plaintiff, saving him, if his demand was proved to be premature, from being barred in a subsequent action by the exception of previous litigation.’
When mancipation was the usual mode of transferring property in immovables and was complete without delivery of possession, and when, further, the rules of litis consumptio prevailed, a plaintiff would occasionally need the praescriptio: Ea res agatur de fundo mancipando. § 131 a. At a later period transfer of possession (traditio) became the only means of transferring property, and the rules of res in judicium deducta (lis contestata), as we have seen, underwent a reform.
Praescriptio longi temporis, in the legislation of Justinian, is in principle equivalent to Usucapio, though the term usucapio is only used for the acquisition of movable things by possession for three years. This arose in the following manner. A proprietor’s right to recover by vindicatio might at an early period be barred by an averment of adverse possession, during ten years, if the parties were domiciled in the same province, during twenty years, if they were domiciled in different provinces (longi temporis possessio). This exceptio of the defendant appeared in the formula in the shape and under the name of a praescriptio (pro reo), which is so called on account of the place it once occupied in the formula, cf. § 133. When, by later legislation, longi temporis possessio accompanied with bona fides became a title whereby property was acquired, it still retained its original name of praescriptio. The term Exceptio longi temporis was a misnomer, because the averment of title by prescription was not an Exceptio but a Negatio of the plaintiff’s ownership, i. e. belonged to the second line of defence. Bethmann-Hollweg, § 154.
§§ 136, 137. Savigny, vol. 5, p. 617, supposes that the formula would not contain the word incertum but the substance of the contract, e. g. possessionem tradi, cf. Lenel, § 55. It is probable that in the lacuna § 134 Gaius explained the nature of praescriptiones pro rev.
The leaf containing from intentione formulae, § 134, to aut pro possessore, § 144, was separated from the rest of the Veronese codex, and seen by Scipio Maffei in 1732. It was afterwards published by Haubold in 1816, the very year in which Niebuhr discovered the rest of the codex.
§ 138. Superest ut de interdictis dispiciamus.
Inst. 4, 15, pr.
§ 139. Certis igitur ex causis praetor aut proconsul principaliter auctoritatem suam finiendis controuersiis interponit. quod tum maxime facit, cum de possessione aut quasi possessione inter aliquos contenditur. et in summa aut iubet aliquid fieri aut fieri prohibet. formulae autem et uerborum conceptiones, quibus in ea re utitur, interdicta 〈—〉 decretaque.
§ 140. Vocantur autem decreta, cum fieri aliquid iubet, ueluti cum praecipit ut aliquid exhibeatur aut restituatur; interdicta uero, cum prohibet fieri, ueluti cum praecipit ne sine uitio possidenti uis fiat, neue in loco sacro aliquid fiat. unde omnia interdicta aut restitutoria aut exhibitoria aut prohibitoria uocantur.
§ 141. Nec tamen cum quid iusserit fieri aut fieri prohibuerit, statim peractum est negotium, sed ad iudicem recuperatoresue itur et ibi editis formulis quaeritur an aliquid aduersus praetoris edictum factum sit uel an factum non sit, quod is fieri iusserit. et modo cum poena agitur, modo sine poena: cum poena, ueluti cum per sponsionem agitur, sine poena, ueluti cum arbiter petitur. et quidem ex prohibitoriis interdictis semper per sponsionem agi solet; ex restitutoriis uero uel exhibitoriis modo per sponsionem, modo per formulam agitur quae arbitraria uocatur.
§ 142. Principalis igitur diuisio in eo est, quod aut prohibitoria sunt interdicta aut restitutoria aut exhibitoria.
Inst. 4, 15, 1.
§ 143. Sequens in eo est diuisio, quod uel adipiscendae possessionis causa conparata sunt uel retinendae uel reciperandae.
Inst. 4, 15, 2.
§ 144. Adipiscendae possessionis causa interdictum accommodatur bonorum possessori, cuius principium est qvorvm bonorvm; eiusque uis et potestas haec est, ut quod quisque ex his bonis quorum possessio alicui data est, pro herede aut pro possessore possideat, id ei cui bonorum possessio data est restituatur. pro herede autem possidere uidetur tam is qui heres est, quam is qui putat se heredem esse: pro possessore is possidet qui sine causa aliquam rem hereditariam uel etiam totam hereditatem sciens ad se non pertinere possidet. ideo autem adipiscendae possessionis uocatur 〈interdictum〉, quia ei tantum utile est, qui nunc primum conatur adipisci rei possessionem. itaque si quis adeptus possessionem amiserit, desinit ei id interdictum utile esse.
Inst. 4, 15, 3.
§ 145. Bonorum quoque emptori similiter proponitur interdictum quod quidam possessorium uocant.
§ 146. Item ei qui publica bona emerit eiusdem condicionis interdictum proponitur quod appellatur sectorium, quod sectores uocantur qui publice bona mercantur.
§ 147. Interdictum quoque quod appellatur Saluianum adipiscendae possessionis 〈causa〉 conparatum est, eoque utitur dominus fundi de rebus coloni, quas is pro mercedibus fundi pignori futuras pepigisset.
Inst l. c.
§ 148. Retinendae possessionis causa solet interdictum reddi, cum ab utraque parte de proprietate alicuius rei controuersia est, et ante quaeritur uter ex litigatoribus possidere et uter petere debeat; cuius rei gratia conparata sunt vti possidetis et vtrvbi.
Inst. 4, 15, 4.
§ 149. Et quidem vti possidetis interdictum de fundi uel aedium possessione redditur, vtrvbi uero de rerum mobilium possessione.
Inst. l. c.
§ 150. Et siquidem de fundo uel aedibus interdicitur, eum potiorem esse praetor iubet, qui eo tempore quo interdictum redditur nec ui nec clam nec precario ab aduersario possideat, si uero de re mobili, eum potiorem esse iubet, qui maiore parte eius anni nec ui nec clam nec precario ab aduersario possederit; idque satis ipsis uerbis interdictorum significatur.
Inst. l. c.
§ 151. Sed in vtrvbi interdicto non solum sua cuique possessio prodest, sed etiam alterius, quam iustum est ei accedere, ueluti eius cui heres extiterit, eiusque a quo emerit uel ex donatione aut dotis nomine acceperit. itaque si nostrae possessioni iuncta alterius iusta possessio exuperat aduersarii possessionem, nos eo interdicto uincimus. nullam autem propriam possessionem habenti accessio temporis nec datur nec dari potest; nam ei quod nullum est nihil accedere potest. sed et si uitiosam habeat possessionem, id est aut ui aut clam aut precario ab aduersario adquisitam, non datur accessio; nam ei 〈possessio〉 sua nihil prodest.
§ 152. Annus autem retrorsus numeratur. itaque si tu uerbi gratia viii mensibus possederis prioribus, et ego vii posterioribus ego potior ero, quod trium priorum mensium possessio nihil tibi in hoc interdicto prodest, quod alterius anni possessio est.
§ 153. Possidere autem uidemur non solum si ipsi possideamus, sed etiam si nostro nomine aliquis in possessione sit, licet is nostro iuri subiectus non sit, qualis est colonus et inquilinus; per eos quoque, apud quos deposuerimus, aut quibus commodauerimus, aut quibus gratuitam habitationem praestiterimus, ipsi possidere uidemur. et hoc est quod uulgo dicitur retineri possessionem posse per quemlibet, qui nostro nomine sit in possessione. quin etiam plerique putant animo quoque retineri possessio〈nem, id est ut quamuis neque ipsi simus in possessione〉 neque nostro nomine alius, tamen si non relinquendae possessionis animo, sed postea reuersuri inde discesserimus, retinere possessionem uideamur. adipisci uero possessionem per quos possimus, secundo commentario rettulimus. nec ulla dubitatio est quin animo possessionem adipisci non possimus.
Inst. 4, 15, 5.
§ 154. Reciperandae possessionis causa solet interdictum dari, si quis ex possessione ui deiectus sit; nam ei proponitur interdictum, cuius principium est vnde tv illvm vi deiecisti, per quod is qui deiecit cogitur ei restituere rei possessionem, si modo is qui deiectus est nec ui nec clam nec precario 〈ab eo〉 possederit; — eum, qui a me ui aut clam aut precario possidet, inpune deicio.
Inst. 4, 15, 6.
§ 155. Interdum tamen etsi eum ui deiecerim, qui a me ui aut clam aut precario possederit, cogor ei restituere possessionem, ueluti si armis eum ui deiecerim; nam propter atrocitatem delicti in tantum patior actionem, ut omni modo debeam ei restituere possessionem. armorum autem appellatione non solum scuta et gladios et galeas significari intellegemus, sed et fustes et lapides.
Inst. l. c.
§ 156. Tertia diuisio interdictorum in hoc est, quod aut simplicia sunt aut duplicia.
Inst. 4, 15, 7.
§ 157. Simplicia sunt ueluti in quibus alter actor, alter reus est, qualia sunt omnia restitutoria aut exhibitoria; namque actor est, qui desiderat aut exhiberi aut restitui, reus is est a quo desideratur ut exhibeat aut restituat.
Inst. l. c.
§ 158. Prohibitoriorum autem interdictorum alia duplicia, alia simplicia sunt.
Inst. l. c.
§ 159. Simplicia sunt ueluti quibus prohibet praetor in loco sacro aut in flumine publico ripaue eius aliquid facere reum; nam actor est qui desiderat ne quid fiat, reus is qui aliquid facere conatur.
Inst. l. c.
§ 160. Duplicia sunt ueluti vti possidetis interdictum et vtrvbi. ideo autem duplicia uocantur, quod par utriusque litigatoris in his condicio est, nec quisquam praecipue reus uel actor intellegitur, sed unusquisque tam rei quam actoris partes sustinet; quippe praetor pari sermone cum utroque loquitur. nam summa conceptio eorum interdictorum haec est vti nvnc possidetis, qvominvs ita possideatis, vim fieri veto; item alterius vtrvbi hic homo de qvo agitvr [apvd qvem] maiore parte hvivs anni fvit, qvominvs is evm dvcat, vim fieri veto.
Inst. l. c.
§ 161. Expositis generibus interdictorum sequitur ut de ordine et de exitu eorum dispiciamus. et incipiamus a simplicibus.
Inst. 4, 15, 8.
§ 162. 〈Si〉 igitur restitutorium uel exhibitorium interdictum redditur, ueluti ut restituatur ei possessio qui ui deiectus est, aut exhibeatur libertus cui patronus operas indicere uellet, modo sine periculo res ad exitum perducitur, modo cum periculo.
§ 163. Namque si arbitrum postulauerit is cum quo agitur, accipit formulam quae appellatur arbitraria, et iudicis arbitrio si quid restitui uel exhiberi debeat, id sine periculo exhibet aut restituit, et ita absoluitur; quodsi nec restituat neque exhibeat, quanti ea res est condemnatur. sed et actor sine poena experitur cum eo, quem neque exhibere neque restituere quicquam oportet, praeterquam si calumniae iudicium ei oppositum fuerit decimae partis quamquam Proculo placuit denegandum calumniae iudicium ei qui arbitrum postulauerit, quasi hoc ipso confessus uideatur restituere se uel exhibere debere. sed alio iure utimur et recte; potius enim ut modestiore uia litiget, arbitrum quisque petit, quam quia confitetur.
§ 164. Obseruare 〈autem〉 debet is qui uult arbitrum petere, ut statim petat antequam ex iure exeat, id est antequam a praetore discedat; sero enim petentibus non indulgetur.
§ 165. Itaque si arbitrum non petierit, sed tacitus de iure exierit, cum periculo res ad exitum perducitur. nam actor prouocat aduersarium sponsione, 〈quod〉 contra edictum praetoris non exhibuerit aut non restituerit; ille autem aduersus sponsionem aduersarii restipulatur. deinde actor quidem sponsionis formulam edit aduersario, ille huic inuicem restipulationis. sed actor sponsionis formulae subicit et aliud iudicium de re restituenda uel exhibenda, ut si sponsione uicerit, nisi ei res exhibeatur aut restituatur, —|NA
(24 uersus in C legi nequeunt) — | —NA aliud facere quam qu — dicat qu—|NA
(7 uersus in C legi nequeunt) —| —NA appellata—|NA
(5 uersus in C legi nequeunt) —| —NAintelle— | — | —|—NAqua—|NA
(3 uersus in C legi nequeunt) —|NAmodis — | —NAparatus fuit —|NA
(3 uersus in C legi nequeunt)
§ 166. —|—NA fructus licitando, is tantisper in possessione con|stituitur, si modo aduersario suo fructuaria stipulatione ca|uerit, cuius uis et potestas haec est, ut si contra eum de poss|essione pronuntiatum fuerit, eam summam aduer|sario soluat. haec autem licendi contentio fructus licita-|tio uocatur, scilicet quia —|—NA. postea alter | alterum sponsione prouocat, quod aduersus edictum praetoris possidenti sibi uis facta sit, et inuicem ambo restipulan|tur aduersus sponsionem; uel—|NA una inter eos sponsio itemque restipulatio una — |NA ad eam fit.—|—|NAresti—.
§ 166 a. Iudex apud quem de ea | re agitur illud scilicet requirit, 〈quod〉 praetor interdicto conplexus est, id est uter eorum eum fundum easue aedes per id tempus quo interdictum redditur, nec ui nec clam nec precario possederit. cum iudex id explorauerit et forte secundum me iudicatum sit, aduersarium mihi et sponsionis et restipulationis summas quas cum eo feci condemnat, et conuenienter me sponsionis et restipulationis quae mecum factae sunt absoluit. et hoc amplius si apud aduersarium meum possessio est, quia is fructus licitatione uicit, nisi restituat mihi possessionem, Cascelliano siue secutorio iudicio condemnatur.
§ 167. Ergo is qui fructus licitatione uicit, si non probat ad se pertinere possessionem, sponsionis et restipulationis et fructus licitationis summam poenae nomine soluere et praeterea possessionem restituere iubetur; et hoc amplius fructus quos interea percepit reddit. summa enim fructus licitationis non pretium est fructuum, sed poenae nomine soluitur, quod quis alienam possessionem per hoc tempus retinere et facultatem fruendi nancisci conatus est.
§ 168 Ille autem qui fructus licitatione uictus est, si non probauerit ad se pertinere possessionem, tantum sponsionis et restipulationis summam poenae nomine debet.
§ 169 Admonendi tamen sumus liberum esse ei qui fructus licitatione uictus erit, omissa fructuaria stipulatione, sicut Cascelliano siue secutorio iudicio de possessione reciperanda experitur, ita similiter de fructus licitatione agere. in quam rem proprium iudicium conparatum est quod appellatur fructuarium, quo nomine actor iudicatum solui satis accipit. dicitur autem et hoc iudicium secutorium, quod sequitur sponsionis uictoriam; sed non aeque Cascellianum uocatur.
§ 170. Sed quia nonnulli interdicto reddito cetera ex interdicto facere nolebant, atque ob id non poterat res expediri, praetor in eam rem prospexit et conparauit interdicta quae secundaria appellamus, quod secundo loco redduntur. quorum uis et potestas haec est, ut qui cetera ex interdicto non faciat, ueluti qui uim non faciat aut fructus non liceatur aut qui fructus licitationis satis non det aut si sponsiones non faciat sponsionumue iudicia non accipiat, siue possideat, | restituat aduersario possessionem, siue non posside|at, uim illi possidenti ne faciat. itaque etsi alias potuerit | interdicto vti possidetis uincere, si cetera ex interdicto | —NA per interdictum secundarium —|—NA
(2 uersus in C legi nequeunt) — | —NA secundarium—| —NA quamuis hanc opinionem—|—NASabinus et Cassius secuti fuerint—|—NA
(9 uersus in C legi nequeunt)—|NA
(20 uersus in C legi nequeunt)—|NA.
§ 138. The last subject to be examined is interdicts.
§ 139. In certain cases for the purpose of putting an end to controversies, the praetor or proconsul directly interposes his authority as a magistrate, which he does then more especially, when possession or quasi-possession is in dispute between the parties: the magistrate in short thus commands or forbids something to be done: the formulae and set terms adapted and made use of for this procedure being called interdicts and decrees.
§ 140. They are called decrees, when he commands that something be done; for instance, when he orders that something be produced, or something be restored: and they are called interdicts, when he prohibits something being done; as when he forbids the violent disturbance of possession acquired without any defect, or the desecration of consecrated ground. Interdicts, then, are orders either of restitution, or of production, or of abstention.
§ 141. But the order to do or not to do something does not end the proceedings, since they go to a judex or to recuperators, and formulae having been issued for the purpose, an inquiry is held as to whether anything has been by them done contrary to the praetor’s prohibition or omitted contrary to his injunction. And this procedure sometimes is penal, sometimes not penal; penal when it is by sponsio, not penal when an arbiter is demanded (formula arbitraria). Prohibitory interdicts are always carried on by way of sponsio; orders of restitution or production sometimes by sponsio, sometimes by means of a formula arbitraria.
§ 142. The first division, then, of interdicts is that they are either for abstention, for restitution, or for production.
§ 143. The next is into interdicts either for obtaining possession, or for retaining possession, or for recovering possession.
§ 144. An interdict for obtaining possession is issued to the bonorum possessor, beginning: ‘Whatever portion of the property;’ and injoining, that whatever portion of the property, whereof possession has been granted to the claimant, is in the hands of one who holds as heir or as mere possessor, such portion shall be delivered to the grantee of bonorum possessio. He holds as heir who either is heir or thinks himself heir; he holds as mere possessor who relies on no title but holds a portion or the whole of the inheritance, knowing that he is not entitled. It is called an interdict for obtaining possession because it is only available to a person endeavouring to acquire possession for the first time, and so ceases to be available to a person who has already had and lost possession.
§ 145. Also the purchaser of an insolvent estate (bonorum emptor) is granted a similar interdict, which some call possessory (interdictum possessorium).
§ 146. Likewise the purchaser of confiscated property at a public auction has a similar interdict, which is called sectorium, because the purchasers of such public property are called sectores.
§ 147. The interdict called Salvianum is also an interdict for obtaining possession, and is available to the landlord against the tenant’s property which has been hypothecated to him by the tenant as a security for rent.
§ 148. Interdicts for retaining possession are regularly granted when two parties are disputing about the ownership of a thing, and the question which has to be determined in the first place is which of the litigants shall be plaintiff and which defendant in the vindication; it is for this purpose that the interdicta Uti possidetis and Utrubi have been established.
§ 149. The former interdict is granted in respect of the possession of land and houses, the latter in respect of the possession of movables.
§ 150. When the interdict relates to land or houses, the praetor prefers the party who at the issuing of the interdict is in actual possession, such possession not having been obtained from the opposing party either by violence or clandestinely, or by his permission. When the interdict relates to a movable, he prefers the party who in respect of the adversary has possessed without violence, clandestinity, or permission, during the greater part of that year. The terms of the interdicts sufficiently show this distinction.
§ 151. But in the interdict, ‘Whichever party possessed’ (interdictum Utrubi), not only the litigant’s own possession is taken advantage of for calculating the time, but also any possession of another person which may justly be treated as an accessory to it, such as that of a person deceased to whom he succeeds as heir, that of a person from whom he has purchased a thing, or has received it by way of gift or on account of dower; thus if my possession when added to the just possession of another person exceeds in time that of my opponent, I succeed against him in that interdict; but he who has no possession of his own neither receives nor can receive any accession of another’s possession; for what is non-existent is incapable of having an accession made to it. But should the possession of a person be a defective one (vitiosa), that is, have been obtained from his opponent either by violence (vi) or clandestinely (clam) or by his leave and licence (precario), he cannot receive any accession to it, for his own possession is of no avail.
§ 152. The year computed is the year immediately preceding; so that if, for instance, you possessed during eight months previous to me, and I during the seven following months, I am preferred, because your possession for the first three months is not counted in your favour in this interdict, it having been in a different year.
§ 153. But a person is deemed to possess, not only when he possesses himself, but also when any one holds the thing in possession in his name, though the person so holding it is not subject to my power; such, for instance, is the holding of property by a hirer of land (colonus) or of a house (inquilinus). So also a person is deemed to possess by means of those with whom he has deposited a thing, or to whom he has lent gratuitous use or habitation of it, as is expressed by the saying that possession is retained by any one who holds a thing in possession in our name. Moreover, it is generally allowed that mere intention suffices for the retention of possession, that is, that although we are neither in possession ourselves, nor any one else in our name, yet if we have gone away without meaning to abandon possession but with the intention of returning, it would seem we still retain possession. The persons by means of whom we may acquire possession were mentioned in the second book; there is not any doubt of the impossibility of acquiring possession by intention alone.
§ 154. An interdict for recovering possession is granted to a person dispossessed of an immovable by violence, beginning: ‘In the place whence thou hast violently ejected,’ which compels the ejector to restore possession, provided that the person ejected did not acquire possession from the other party either by violence or clandestinely or by his leave and licence. Whereas, if his own possession was thus acquired from the other he may be ejected by him with impunity.
§ 155. Sometimes, however, the person violently ejected, though his own possession was obtained from the opposite party either by violence or clandestinely or by his leave and licence, can claim to be reinstated, that is, when he has been ejected by force of arms: for then on account of the heinousness of the offence I am punished to the extent of being compelled by action [i. e. by the interdict de vi armata] to reinstate him whatever the previous circumstances may have been. By the term arms we are to understand not only shields, swords, and helmets, but also sticks and stones.
§ 156. A third division of interdicts is into Simple and Double.
§ 157. Those are simple wherein one party is plaintiff and the other defendant, as always is the case in all the restitutory or exhibitory interdicts; for he who demands the exhibition or restitution of a thing is plaintiff, and he from whom it is demanded is defendant.
§ 158. Of prohibitory interdicts, some are simple, others double.
§ 159. The simple are exemplified by those wherein the praetor commands the defendant to abstain from desecrating consecrated ground, or from doing anything which is illegal on a public river or on its banks; for he who demands that the illicit act shall not be done is plaintiff, he who is attempting to commit the illicit act is defendant.
§ 160. Of double interdicts we have examples in Uti possidetis and Utrubi. They are denominated double because the footing of both parties is equal, neither being exclusively plaintiff or defendant, but both playing both parts, and both being addressed by the praetor in identical terms. For in brief these interdicts are thus drawn up respectively, ‘I forbid violence to be used to prevent your possessing the property as you now in fact possess it’; and the other interdict runs thus, ‘I forbid violence to be used to prevent the party who has possessed the slave during the greater part of the year from taking him away.’
§ 161. After classifying interdicts we have next to explain their process and result; and we begin with the simple.
§ 162. When an order of restitution or production is issued, for instance, of restitution of possession to a person who has been forcibly ejected from it, or of production of a freedman whose services his patron intends to call into request, the proceedings are sometimes penal, sometimes not penal.
§ 163. For when arbitration is demanded by the defendant, he receives what is called a formula arbitraria, and if by the arbitration of the judex he is directed to restore or produce anything, he either restores or produces it without further penalty and so is absolved, or if he does not restore or produce it he is condemned, but only to make good whatever loss is caused to the plaintiff by his not obeying the order of the judex. Neither does the plaintiff incur any penalty for suing a defendant who is not obliged to produce or restore, unless he is challenged by the defendant to an action for vexatious litigation (calumniae judicium) to recover from him a tenth of the object of the suit by way of penalty. For though Proculus held that the demand of arbitration precludes the defendant from suing for vexatious litigation, on the ground that it is an admission by him of an obligation to restore or to produce the thing, we adopt the contrary view and justly so; for the demand of an arbiter shows that the defendant wishes to litigate in a more moderate way, but not that he confesses the opponent’s claim.
§ 164. The defendant must be careful, if he wishes to demand an arbiter, to make the demand at once before he leaves the court or tribunal of the praetor; for a subsequent demand will not be granted.
§ 165. Thus if he leaves the court without requesting an arbiter, the proceeding is brought to an issue attended with risk to the parties: for the plaintiff challenges the defendant to wager a sum to be forfeited by the defendant if he has contravened the edict of the praetor by failing to produce or restore; and the defendant challenges the plaintiff to a counter-wager of a similar sum to be forfeited by the plaintiff upon the opposite condition. The plaintiff then delivers the formula of the wager to the defendant, and the defendant in turn delivers the formula of the counter-wager. But the plaintiff adds to the formula of the wager another action for the production or restoration of the thing in dispute, in order that if he obtains judgment in the action on the wager and the thing is not restored or produced, the defendant may be condemned in damages to the amount of its value.
§ 166.When a double interdict has been issued, the interim possession or mesne profits are sold by auction, and the higher bidder of the litigants is placed in possession pending the controversy, provided that he gives his opponent security by the fructuary stipulation, the force and effect of which is that if judgment on the main question of possession is pronounced against him, he has to pay to the other party the sum mentioned in the stipulation. This bidding of the parties against one another is called a bidding for the fruits, because the parties contend with one another in this way as to the power of taking the fruits of the thing during the preliminary interdict procedure. After this each party challenges the opponent to wager a sum to be forfeited by the promisor if he has contravened the edict by violently disturbing the possession of the promisee, and each party, after binding himself as promisor in a wager, becomes the promisee in a similar counter-wager.
§ 166 a. The judex who tries the action has to inquire into the question proposed by the praetor in the interdict, namely, which party was in possession of the house or land in question at the time when the edict was issued, not having acquired it from the other party either by violence or clandestinely or by his leave and licence. When the judex has thus inquired and has, it may be, decided the case in my favour, he condemns my adversary in the penal sums of the actions on the wager and counter-wager in which I was promisee, and absolves me in the actions upon the wager and counter-wager in which I was promisor; and, if my opponent is in possession as higher bidder in the auction, unless he restores possession, he is condemned in the action called Cascellianum or Secutorium.
§ 167. So that if the higher bidder in the auction fails to prove that he is entitled to possession, he is ordered to pay the sums of the wager and counter-wager in which he was promisor, and the price he offered for the mesne profits at the sale by auction, by way of penalty; and further, to restore possession of the thing in question, and restore any profits which he has made from the thing; for the sum of money fixed by the auction is not the price of the mesne profits, but a penalty for attempting to retain the possession that belonged to another and for thus obtaining the power of getting the fructus of the thing.
§ 168. If the unsuccessful bidder in the auction fails to prove that he had possession, he is only condemned to pay the sum of the wager and counter-wager by way of penalty.
§ 169. We shall notice, however, that it is open to the unsuccessful bidder instead of proceeding on the fructuary stipulation, to bring an action upon the sale by auction which is called fructuarium, just as he brings the Cascellianum or Secutorium action for recovering possession; for this purpose a special action has been established which is called fructuary (judicium fructuarium): this action, as following the result of the action on the wager, is also called consequential (Secutorium); but is not also called Cascellianum.
§ 170. As sometimes, after the issue of an interdict, one of the parties declined to take one of the subsequent steps, and the proceedings came to a stand-still, the praetor has provided for this contingency, and invented the socalled secondary interdicts, which in such a case are issued: whose effect is, that if a party decline to take any necessary step in the interdict procedure, such as to violently eject the other party (vis ex conventu), or to bid in the auction for the mesne profits, or to give security for the mesne profits, or to enter into the wagers, or to undertake the trial on the wagers, he shall, if in possession, be obliged to make over the possession to the other party, if out of possession he must not violently eject the other party, and so, although he might have been successful in maintaining the interdictum Uti possidetis if he had complied with the requisites of procedure, possession will be given by the secondary interdict to the other party, if he has not done so.
Interdicts are characterized by Gaius, § 135, as proceedings wherein the praetor principaliter auctoritatem suam interponit. Principaliter may simply refer, as was assumed in the first edition, to the chronological order of steps in legal proceedings; and then interdict procedure will be characterized by the fact that it opens with a command of the praetor (interdictum) whereas ordinary procedure opened with an act of the plaintiff (in jus vocatio), and the praetor’s authority was not very signally manifested, at least in statute-process, till the stage of execution (addictio, missio in possessionem). But Bethmann-Hollweg, § 98, seems correct in giving a less insignificant meaning to the term which expresses the essential contrast of Interdict and Action, and interpreting the word principaliter as expressive of the pre-eminence, supremacy, or absolute power, of the praetor in the sphere where interdicts were employed. The contrast then will be between the jurisdictio of the praetor and his imperium. In his jurisdictio his functions are merely ministerial or ancillary to those of the legislator: in his imperium, as conservator of order, custodian of the peace (to use modern phrases), and repressor of violence, he is invested with a portion of the sovereign power. This antithesis of the Praetor merely administering the ordinary law, and his exercising a quasi-legislative power in extending it meets us in several fundamental classifications of Roman jurisprudence: it has already been indicated in connexion with the contrasted terms, judicia legitima and judicia imperio continentia, §§ 103-109, comm., and the present is a fitting place for again noticing some of its principal aspects.
(1) Statute-process and the Formulary system are contrasted by the respective predominance in each of the legislator and administrator. In Legis actio the Legislator and the Litigants seem alone to occupy the scene. The Praetor is only present as master of the ceremonies, and even as such can only utter sentences which the Legislator has previously dictated. In the Formulary system the Praetor appears with much larger attributes; he seems to have stepped in front of the Legislator and has taken much of the initiative from the Suitors. Thus, marking the respective prominence of the statute and the administrator, we might denominate the older and younger systems as Legis actio and Praetoris interpositio: and it is this accentuation of the statute-book or lawgiver as opposed to the tribunals or executive that the translation has attempted to express in offering the invented term Statute-process as a version of Legis actio.
(2) Both Statute-process and the Formula, as representing at different periods the Ordo judiciorum or ordinary course of procedure, by which a magistrate appointed a judex to try a case, exemplify the predominance of the lawgiver as contrasted with that of the magistrate, when opposed to extraordinary procedure or Cognitio extraordinaria praetoris. The latter, in which no judex was appointed, the proceedings throughout being under the direct cognizance of the magistrate, was the appropriate procedure in plaints between children and their parents or between patrons and freedmen in cases of excessive cruelty of masters to slaves, or in cases of injury by law occasioned by some exceptional circumstance—fraud, violence, absence, ignorance, minority (for an account of the praetor’s extraordinary remedy on this account by in integrum restitutio see 1 §§ 197-200, comm.)—so exceptional that it had been overlooked or disregarded in the rules of jus strictum respecting the validity of legal dispositions. Interdicts seem also to have originally belonged to this extraordinary jurisdiction of the praetor, who intervened in this way in the interest of public order. In most of such cases, but not in all (e. g. fideicommissa, though belonging to cognitio extraordinaria, were instituted by Augustus, Inst. 2, 23, 1), the praetor by his inquisition and decree (§§ 103-109, comm.) superseded not only the judex but also the lawgiver, who had uttered no commands respecting the various circumstances above enumerated.
(3) The same antithesis meets us as a principle of division even within the limits of Ordo judiciorum. Here we find on the one hand the class of actiones legitimae, actions of civil law, including under one of the wider acceptations of civil law actiones bonae fidei (as to the meaning of actio legitima, cf. Roby, 1, p. 95, n. 1); and on the other the class of actiones praetoriae, that is, actiones ficticiae or actions with a variation of persons in the intentio and condemnatio or actions with a formula in factum concepta. In the latter class the praetor, except so far as he abstained with a demure deference from inserting in the formula the formal term for a legal obligation Oportere, certainly exercised the attributes of a legislator. A similar, though not identical division, as already has been mentioned, §§ 103-109, comm., was that into judicia legitima and judicia imperio continentia; a division that, speaking roughly, corresponded to the functions of the praetor in imperial Rome and the functions of the magistrate in the subject provinces. This last division, though important in its time, was more purely historic and accidental than the preceding: it has left a less permanent impress on Roman law, and its traces are nearly effaced from the compilation of Justinian.
(4) Interdict procedure, as opposed to the regular mode of litigation, is defined by Gaius by the characteristic feature that the magistrate principaliter auctoritatem suam interponit. This feature, as we have now seen, was not peculiar to Interdicts: but if we suppose that Interdicts were coeval with Statute-process and originally formed a matter of Cognitio extraordinaria; and that, further, the other subjects of cognitio extraordinaria were then imperfectly developed; at such a period Interdicts would form the most signal manifestation of magisterial auctoritas: and it is perhaps to a jurist of this period that the definition we have quoted is due. So large a power of the magistrate must however have seemed, even at Rome, inconsistent with republican liberty: moreover he would from an early time have found it inconvenient to inquire himself whether his command had been obeyed. Hence a judex was appointed to decide this question, and so the interdict became merely a conditional order, directed to the parties, under which the judex was bound to hold a trial, if necessary, in the ordinary form, that is by actio ex sponsione or by actio arbitraria (§ 141), and to condemn or absolve according to his finding (cf. Sohm, p. 307); and in Interdict procedure, as we know it, obedience to the praetor’s decree is not enforced by the praetor himself but by a judex, and by legal proceedings in the ordinary form; either, that is, by an actio ex sponsione or by an actio arbitraria (§ 141). Accordingly in the last period we find Interdict procedure opposed to Cognitio extraordinaria and ranked under the contra-distinguished class of Jus ordinarium or Ordo judiciorum. Thus the Interdict became rather a matter of jurisdictio than of imperium. However, it still remained true that in issuing an Interdict the praetor had spoken with the voice of a sovereign. This precept is not an application of some general command of the legislator, but is itself a law, and will serve as the governing principle of future adjudication. If we describe Law as a universal interdict addressed by the legislator to the community. Interdict may be described as a particular Law addressed by the magistrate to individuals. This will appear more plainly when we come to the details of Interdict procedure.
Interdicts relate to subjects in almost all departments of the code.
A. In jus publicum and jus sacrum we find the interdicts relating to sacred places and public places—public roads or public rivers. These places are protected by interdicta popularia, interdicts in which any individual may vindicate as prosecutor the interests of the public, Dig. 43, 8, 2, 34.
B. In the law of status and the law of domestic relations there are the interdictum de homine libero exhibendo, Dig. 43, 29, a kind of Writ of Habeas Corpus: interdicta de liberis exhibendis and de liberis ducendis, protecting the patria potestas, Dig. 43, 30: and de liberto exhibendo, assisting the patron.
C. In the code of Property (res familiaris) and (1) in the department of res singulae we have the interdicts Utrubi, Uti possidetis, and Unde vi, relating to the possession of movables and immovables: and others, closely allied, similarly related to the quasi-possession of servitudes. In controversies between owners of neighbouring land and others we have interdictum Demolitorium based on Operis novi nunciatio (an admonition of the defendant which might be served on him by any citizen to desist from some building innovation), an interdict requiring the demolition of the building erected in spite of such prohibition on the part of the plaintiff (nuncians), and before such prohibition was set aside by judicial authority, Dig. 39, 1, 20, pr; cf. Windscheid, Pand., § 466, n. 12: and the interdict Quod vi aut clam, similarly requiring the restitution or undoing of some innovation in land (polluting streams, cutting trees, ploughing up pasture, &c.) that has been executed either furtively or in face of the prohibition of some party who is interested and who has jus prohibendi, Dig. 43, 24: and other interdicts de arboribus caedendis (as to the fifteen feet space required cf. Windescheid, § 169, n. 12) and de glande legenda, Dig. 43, 27: and 28, enforcing provisions derived from the Twelve Tables.
I said that interdicts were to be found in almost all departments of the code. It is observable that no interdicts are employed in the law of Obligation (jus in personam) except in so far as they protect obligations secured by way of pledge or hypothec. Thus interdictum Salvianum (§ 147; Inst. 4, 15, 3; Dig 43, 33; Cod. 8, 9; cf. Windscheid, § 236, n. 5) protects the landlord in the recovery of his rent by preventing the tenant from taking away his goods from the premises demised.
(2) In the law of inheritance we have the interdicts Quorum bonorum, § 144, Dig. 43, 2, and Quod legatorum, Dig. 43, 3, in aid of the praetorian successor and heir.
D. In the law of Procedure we have the interdicts Quem fundum, Quam hereditatem, Quem usumfructum, § 89, and the interdicta Secundaria, § 170, compelling a defendant in a restitutory or exhibitory interdict to defend himself in the mode prescribed by the law under pain of forfeiting possession. Here too we may place the interdicts Utrubi and Uti possidetis, so far as they are not themselves final suits but only means of determining provisional or interimistic possession during the pendency of the definitive vindicatio: and here too, if we look on Quorum bonorum as standing to hereditatis petitio in the same relation in which Uti possidetis stands to vindicatio, i. e. as merely preparatory to the final suit, we may place the interdict Quorum bonorum. At a later stage of proceedings the interdict Ne vis fiat ei, qui in possessionem missus erit, Dig. 43, 4, protects the creditor who has obtained execution. The interdictum fraudatorium protects the creditor against fraudulent alienation by an insolvent debtor, Dig. 42, 8: the interdictum possessorium and interdictum sectorium, §§ 145, 146, protect the purchaser of the estate of the insolvent or the condemned criminal.
As an alternative to some of these interdicts, the plaintiff had his option of an actio in factum: e. g. an alternative to interdictum Salvianum was actio Serviana, Inst. 4, 6, 7; and an alternative to interdictum fraudatorium was actio Pauliana, Dig. 22, 1, 38, 4. Or possibly in these cases also the Interdict was the provisional, the Action the definitive proceeding.
§ 140. Restituere in respect of the acts which it denotes is a word of many meanings, and comprehends several acts which in physical character have little in common but the name. Sometimes it means the restoration of an unlawful structure to its original condition: e. g. Quod in flumine publico ripave ejus fiat, sive quid in id flumen ripamve ejus immissum habeas, quo statio iterve navigio deterior sit, fiat, restituas, Dig. 43, 12, 1, 19. ‘What you have built in a public river or on its bank, or what you have discharged into the river or on to its bank, interfering with the anchorage or passage of vessels, I command you to re-establish.’ Sometimes it means the restoration of possession, as in the interdict Unde vi, § 154; sometimes the delivery of possession, where no possession has preceded, as in the interdict Quorum bonorum, § 144. But in spite of the variety of physical acts which it denotes, the word Restituere is univocal if we look at its legal connotation, which is always the undoing of some wrong, the reinstatement of a person in the possession and enjoyment of a right.
Exhibere is the production of a thing or person, and was usually the preliminary of a vindication. Quem liberum hominem dolo malo retines, exhibeas, Dig. 43, 29, 1. ‘The freeman whom you unlawfully detain I command you to produce.’ Qui quaeve in potestate Lucii Titii est, si is eave apud te est, dolove malo tuo factum est quominus apud te esset, ita eum eamve exhibeas, Dig. 43, 30, 1. ‘The son or daughter of Lucius Titius, who is subject to his power, and whom you detain or have by your act fraudulently ceased to detain, I command you to produce.’
§ 144. The interdict Quorum bonorum, according to Savigny, was the remedy whereby an heir, whether civil or praetorian, and, if praetorian, whether contra tabulas or secundum tabulas or ab intestato, having already, in response to his demand (agnitio) of the succession, obtained from the praetor the formal grant (datio) of bonorum possessio, maintained his title thereto before the tribunals if he met with opposition; just as hereditatis petitio was the remedy whereby the civil successor could have maintained a corresponding claim to the hereditas. But according to what is now the prevalent opinion this interdict had a more limited application than hereditatis petitio, being confined in its object to obtaining possession of corporeal objects belonging to the inheritance. Cf. 3 §§ 18-38, comm.
The terms of the interdict ran as follows: Quorum bonorum ex edicto meo illi possessio data est, quod de his bonis pro herede aut pro possessore possides possideresve, si nihil usucaptum esset, quodque dolo malo fecisti uti desineres possidere, id illi restituas, Dig. 43, 2, 1. ‘Whatever portion of the goods, granted in pursuance of my edict to be possessed by such and such a one, thou possessest as heir or as possessor, or wouldest so possess but for usucapion, or hast by your act fraudulently ceased to possess, such portion do thou deliver up to such a one.’
Quorum bonorum was the proper remedy against two classes of adversary: (1) any one who claimed as heir (pro herede), either under the praetorian edict or as fideicommissarius, Dig. 5, 3, 20, 13, or at civil law; and (2) praedo, or any one who seized and held without title, or merely by title of occupancy (pro possessore), in virtue of the anomalous law which permitted strangers to seize vacant hereditaments, and convert possession into ownership by a short period of usucapion, 2 § 52. If the adversary elaimed on any other title, e. g. pro empto or pro donato, the proper remedy of bonorum possessor or heres was not by Quorum bonorum nor by Hereditatis petitio, but by an ordinary Real action (Rei vindicatio). The words ‘possideresve si nihil usucaptum foret’ are a trace of the Sc. mentioned in 2 § 57 (cf. comm. to this passage), which relieved the grantee of possession against usucapion, i. e. which rescinded the usucapion, and allowed Quorum bonorum to be brought even after usucapion had been completed and the bona fide putative successor or the mala fide unentitled occupant no longer possessed pro herede or pro possessore, but pro suo. (According to Puchta, usucapion was always unavailing against Quorum bonorum, and the effect of the Sc. was only to assist the heir at civil law, by inserting in the formula of Hereditatis petitio a clause that had always as a matter of course been inserted in the interdict Quorum bonorum.)
According, then, to Savigny, Quorum bonorum was a definitive suit in matters of succession when the plaintiff, instead of claiming hereditas in reliance on jus civile, claimed bonorum possessio in reliance on jus praetorium. But the prevalent opinion is that of Vangerow, that Quorum bonorum was merely a summary and provisional procedure for obtaining possession of corporeal objects belonging to the inheritance pending the definitive suit for the succession. The ultimate title to the estate would be determined by an hereditatis petitio if the suit was brought by the heir, or by an hereditatis petitio possessoria, if the suit was brought by the praetorian successor, Dig. 5, 5, 1. In support of this view, it may be observed that on Savigny’s hypothesis no satisfactory account can be given of the nature of hereditatis petitio possessoria.
§ 148. In the real actions of statute-process or the eldest system the award of provisional possession during the pendency of a suit was called Vindicias dicere, cf. § 16 and Gellius 20, 10. In the later methods of real action, vindicatio per sponsionem or per formulam petitoriam, Vindiciae dicendae was apparently superseded by the interdicts Utrubi and Uti possidetis; which, accordingly, would bear the same relation to vindicatio that Quorum bonorum bore to hereditatis petitio.
As these interdicts were required to determine the question who should have possession pending the vindicatio, so it is clear that a third anterior proceeding would be necessary to determine who should have provisional possession during the pendency of litigation on the interdict: and similarly we might imagine a fourth, a fifth, and in fact an infinite series of anterior proceedings to be required. We shall find, however, that this regressus ad infinitum was stopped at the third term by means of an auction (fructus licitatio), § 166, a process of a very summary character. If a party attempted to defeat this provision by refusing to take part in the auction, his opponent was aided by interdicta Secundaria, § 170. It may seem that opposition to the issue of interdicta Secundaria would again open out a vista of an infinite series of anterior steps; but, doubtless, the only means of preventing the issue of interdictum Secundarium was an instant consent to co-operation in fructus licitatio.
Fructus licitatio was obsolete in the time of Justinian: in modern Italy and Germany it is superseded by a process called Possessorium Summarissimum; in which the judge on a brief inquisition provisionally awards possession to the party who proves the last act of undisturbed possession.
The proceedings in a double interdict were somewhat complicated, but the decision ultimately depended on the result of the trial of one of the sponsionum formulae. The interdict Uti possidetis was of the following form: Uti eas aedes, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto. De cloacis hoc interdictum non dabo: neque pluris quam quanti res erit; intra annum, quo primum experiundi potestas fuerit, agere permittam, Dig. 43, 17, 1, cf. 160. ‘Whichever party has possession of the house in question, without having acquired it either by violence, or clandestinely, or by leave and licence of the adversary, the violent disturbance of his possession I prohibit. Sewers are not included in this interdict. The value of the thing in dispute and no more may be recovered, and I will not allow a party to proceed in this way except within the first year of days available for procedure (annus utilis).’ The right of the possessor was not affected if his possession was commenced either by violence, or clandestinely, or by permission in respect of any other person than the defendant. Inst. 4, 15, 4.
The interdict Utrubi was of the following form: Utrubi hic homo, quo de agitur, majore parte hujusce anni fuit, quominus is eum ducat, vim fieri veto, Dig. 43, 31. ‘Whichever party had possession of the slave in question during the greater part of the preceding year I prohibit violence being used to prevent him from taking the slave.’ The same exceptions of violence, clandestinity, and permission, as in the interdict Uti possidetis, were either expressed or understood. Before Justinian’s time Utrubi had been assimilated to Uti possidetis, that is, comparative length of possession within the year was made immaterial, Inst. 4, 15, 4. ‘But at the present time the practice is different; for both interdicts, so far as the question of possession is concerned, are on the same footing; so that in respect both of land and movables judgment goes for him who proves that he was in actual possession at the moment of joining issue in the action, not having acquired it from the other party either by violence, or clandestinely, or by his leave and licence.’ Thus the protection of these interdicts is generally afforded to the party in actual possession, the question of his right to possess being disregarded. And this protection of possession is allowed even against the owner himself, who cannot plead exceptio dominii, but to recover possession must prove his title by an independent vindicatio.
Utrubi and Uti possidetis are classed by Gaius under the head of interdicta Retinendae possessionis. This was their category when either party succeeded in proving that he was in actual possession at the time of bringing the interdict, unless such possession could be impeached by the other party on one of the above mentioned grounds: but the exceptions, vi clam aut precario, when sustained by the non-possessor, might in fact bring Utrubi and Uti possidetis under the category of interdicts Recuperandae possessionis. If, that is to say, a litigant proved that he had actual possession, but his possession was shown to be vitiated by violence, secrecy, or permission, he was dispossessed and his opponent who was equally plaintiff in the action was reinstated in possession, which he was presumed never to have lost, Dig. 43, 17, 3, pr. Utrubi was clearly a recuperatory interdict in its original form: but it might be so equally, in virtue of the exceptions, after its form had been assimilated to that of Uti possidetis. Baron, § 120. Sohm, p. 353.
§ 154. The interdict Unde vi (or De vi) which was applicable only to land had two forms, one of which is called by Cicero interdictum quotidianum, and redressed cases of ordinary violence (vis quotidiana), while the other was invoked in cases of armed violence (vis armata). The exceptio vitiosae possessionis (vi, clam, precario) could be pleaded as a defence to the former, but not to the latter, interdict. Like Uti possidetis and Utrubi the interdict Unde vi was based simply on the ground of possession, not on title or right to possess.
The interdictum quotidianum has been thus restored from indications in Cicero, Pro Caecina and Pro Tullio (Caec. 31 § 91; Tull. 19 § 44): Unde tu aut familia aut procurator tuus illum aut familiam aut procuratorem illius in hoc anno vi dejecisti cum ille possideret, quod nec vi nec clam nec precario a te possideret, eo restituas. ‘In the place whence thou or thy slaves or procurator hast this year violently ousted him or his slaves or procurator from possession, which possession he held without having acquired it from him either by violence, or clandestinely, or by his leave and licence, in that place do thou reinstate him in possession’ (cf. Lenel, p. 379 et seq.).
The interdict De vi armata may be restored as follows: Unde tu aut familia aut procurator tuus illum aut familiam aut procuratorem illius vi hominibus coactis armatisve dejecisti eo restituas. ‘In the place whence thou or thy slaves or procurator hast violently ejected him or his slaves or procurator by men assembled or armed, in that place do thou reinstate him in possession.’ This differed from the ordinary interdict by the omission of the exceptions, and the omission of limitation to a year. (Cf. Roby, 1, p. 462 et seq., 2, App. D, pro Caecina; Sohm, p. 354 et seq.)
The interdict Unde vi only applied to immovables. Illud utique in dubium non venit, interdictum hoc ad res mobiles non pertinere, Dig. De vi et de vi armata, 43, 16, 1, 6. ‘It is certain that this interdict is not available in the case of movables.’
The right of the defendant in the ordinary interdict (quotidianum) to plead by way of exception the vices (violence, secrecy, permission) by which the plaintiff’s possession was tainted, was apparently deemed to be abrogated by a constitution of the emperors Valentinian, Theodosius, and Arcadius, a. d. 389, Cod. 8, 4, 7. ‘Whoever dares to seize by violence things in the possession of the treasury or of private persons without waiting for a judicial order, shall restore possession, and, if he is proprietor, shall forfeit his property, if he is not proprietor, shall forfeit the value.’ In accordance with the spirit of this constitution, the dispossessor was no longer allowed to plead the exceptions in the old form of the interdict, and they are omitted in the new form which we find in the Digest: Unde tu illum vi dejecisti aut familia tua dejecit, de eo quaeque ille tunc ibi habuit tantummodo intra annum, post annum de eo quod ad eum qui vi dejecit pervenerit, judicium dabo, Dig. 43, 16, 1. ‘The land (or house) whence thou or thy slaves hast violently ejected such a one, and the movables which he had therein, shall be recoverable by action within a year; after the expiration of a year he shall only recover what came into the hands of the dispossessor.’ That is to say, the distinction between vis armata and vis quotidiana was no longer recognized. For the difference between the meaning of vis in the interdicts unde vi, uti possidetis, and quod vi aut clam respectively see Windscheid, 1 § 160, n. 5.
Although violence, armed or unarmed, was prohibited to be employed for the recovery of possession even from possessor vitiosus, yet to repel violence by violence in the defence of possession was permitted, Dig. 43, 16, 3, 9. ‘An armed aggressor may be lawfully repelled by arms, but this must be immediately, not after an interval, and we may not only resist ejectment, but eject the ejector, provided that no interval has elapsed and it is done forthwith.’ Ibid. 17. ‘A possessor who is violently ejected and recovers possession immediately by force is understood rather to return to his former position than to possess by violence. Therefore, if I eject you by force, and am immediately ejected by you, and then eject you again, you may have the interdict Unde vi.’
We have seen that Uti possidetis and Utrubi, though called interdicts Retinendae possessionis, were also in effect interdicts Recuperandae possessionis whenever any of the vitia possessionis was established by the other party: that if the possession of the actual possessor was tainted with one of three vices, if it was acquired from the other party furtively (clam), acquired from him by violence (vi), or held of him by his leave (precario), then his adversary recovered possession. What, then, it may be asked, was the use of a distinct interdict Recuperandae possessionis, the interdict Unde vi, which, like the Uti possidetis, was only available for a year? The answer is, that Uti possidetis could only have the effect of restoring possession when the dispossessor was in present possession; it gave no redress when a third party was the present possessor: in such cases the party dispossessed required a different remedy, and this was given him in the interdict Unde vi, which could be maintained against a dispossessor for damages, whether the latter continued in possession or not. Further, by Uti possidetis the intermediate profits (fructus) were only recoverable from the commencement of the suit, by Unde vi from the time of the ejectment; and the remedy of the dispossessed person by Uti possidetis was barred by the vices of his own possession, not so his remedy by Unde vi, though, as we see by the text, §§ 154, 155, this difference only applied to vis armata, when Gaius wrote.
As violent dispossession was remedied by the interdict Unde vi, so other interdicts remedied dispossession whose inception was clandestine or permissive. An interdict De clandestina possessione seems to be mentioned, Dig. 10, 3, 7, 5, though this more probably refers to a particular application of the interdict Uti possidetis, than to be a special interdict of itself (cf. Lenel, p. 377, n. 7). Such a special interdict would scarcely be required in the case of immovables, for as a possessor was not dispossessed until he had notice of the invasion, he could immediately maintain Uti possidetis, Dig. 41, 2, 6, 1—retinet ergo possessionem qui ad nundinas abiit—or he could by attempting an entry convert the clandestine into a violent dispossession. Nor would it be required for movables, for clandestine dispossession of a movable might be redressed by Utrubi combined, perhaps, with an exhibitory interdict or order of production. Accordingly, it is generally supposed that no special interdict against clandestine dispossession ever existed.
The interdict De precario was in these terms; Quod precario ab illo habes aut dolo malo fecisti, ut desineres habere, qua de re agitur, id illi restituas, Dig. 43, 26, 2, pr. ‘The possession of the thing in question which thou holdest by the permission of such a one, or hast fraudulently ceased to hold, do thou restore to him.’
Before we quit this topic we may take the opportunity of considering some of the respects in which the relation called Precarium differed from a closely allied institution, the contract called Commodatum.
(1) Precario rogans (the holder of a thing merely by permission of another) generally had what may be called derivative possession: Commodatarius (the borrower) never had more than detention.
(2) The obligation in Precarium which was not originally regarded as a contract, cf. Sohm, p. 354, n. 5, is purely unilateral and on the side of precario rogans, being simply that he should restore the thing to the person for whom he holds it. Precario dans (the person who allows another to hold property for him) is under no obligation, not even the semi-bilateral obligation for impensae &c., which is incumbent on Commodans (the lender).
(3) Precario rogans is not, like Commodatarius, responsible for diligentia, Dig. 43, 26, 8, 3. Precarium seems at first to have been applicable only to land but afterwards to have been extended to movable property.
At a late period of Roman law Precarium was so far regaided as a contractual obligation that Precario dans could recover by an actio praescriptis verbis, Dig. 43, 26, 2, 2, and 19, 2. Thus Precario dans had two remedies, an action to recover possession (interdictum de precario) and an action on contract: Commodans had only his action on contract; interdicts, as we have stated, not being employed to enforce contracts.
§ 156. Paulus mentioned another kind of interdicta duplicia, namely, those for either acquiring or recovering possession. Sunt interdicta, ut diximus, duplicia tam reciperundae quam apiscendae possessionis, Dig. 43, 1, 2, 3. These are the interdicts, Quem fundum, Quam hereditatem, Quem usumfructum, which have been already quoted, § 89, whereby, if the defendant in a real action refused to give security judicatum solvi, possession was transferred to the plaintiff, who in some cases would acquire, in others recover possession. Quem fundum was the interdict employed in Vindicatio: Quam hereditatem in Hereditatis petitio: Quem usumfructum in the action, claiming an usufruct. In interdict procedure, instituted for the retention of possession, analogous functions were performed by further interdicts called interdicta Secundaria, § 170.
Pending litigation respecting Urban servitudes the plaintiff was protected by a peculiar institution, the interdictum Demolitorium based on Operis novi nuntiatio, the nature of which demands a passing notice. If A, a person entitled to some real right (mortgagee, emphyteuta, superficiarius), was aggrieved by some architectural innovation (aedificatio, demolitio) on the part of B, whereby an urban servitude over the tenement of A was asserted or some urban servitude [jus habendi or jus prohibendi] belonging to A, as owner of a dominant tenement, was violated, A was entitled to serve a formal inhibition or private injunction on B (prohibitio, operis novi nuntiatio) summoning him to desist from the innovation. On this summons B was bound to desist from his work until he either obtained from the praetor a dissolution or discharge of the summons (remissio, missam facere nuntiationem): or entered into a satisdatio or cautio de demoliendo, security that the structure should be demolished in the event of A as plaintiff succeeding in a future actio Negatoiia or Confessoria, i. e. establishing his own jus prohibendi, which would be the same as disproving B’s jus aedificandi. If without obtaining such remissio or giving such cautio B persisted in his work, he was compelled to demolish it by the interdictum Demolitorium. If he desisted from the work for the present, but refused to oppose A’s suit in the regular course by entering into satisdatio de re defendenda, it was the duty of the judge to compel him to enter into a stipulation that he would not again attempt to build before he established his own jus aedificandi, or disproved A’s jus prohibendi, as plaintiff in a suit. This would be actio negatoria of a jus altius non tollendi, if he denied that he was ever under an urban servitude to the tenement of A: actio confessoria of jus altius tollendi, if he affirmed that the servitude was extinguished by usucapio libertatis: or some other actio confessoria, if he claimed a dominant servitude over the tenement of A.
Pending disputes on wrongs relating to land a similar function was discharged by the interdictum Quod vi aut clam. On a prohibitio from a neighbour, who might have a real right or be a mere lessee, prohibitus was obliged to desist from any agricultural innovation (ploughing up pasture, cutting trees, polluting streams, &c.) until he offered security (satisdatio judicio sisti) in any suit in which he might be made defendant, Dig. 43, 24, 3, 5; or proved by way of exceptio his jus faciendi, or by way of Negation disproved his neighbour’s jus prohibendi, as plaintiff in some real action or, if the opus was on his own land, in Uti possidetis, Dig. 43, 17, 3, 2. If he persisted in his operation in spite of the prohibitio, or avoided prohibitio by omitting to give notice to the party interested, the interdictum Quod vi aut clam compelled him to efface it and to pay damages for the harm it occasioned.
The interdicts which Gaius calls double are called by Ulpian mixed, Dig. 44, 7, 37, 1. ‘Mixed actions are those wherein each party is plaintiff, as the action for determining boundaries, for partition of an inheritance, for partition of joint property, and the interdicts Uti possidetis and Utrubi.’ The effect of this duplicity or mixture of characters was that each party was liable to condemnation and absolution. According to Justinian, the three personal actions just named are called Mixed because they involve questions both in rem and in personam, Mixtam causam obtinere videntur, tam in rem quam in personam, Inst. 4, 6, 20. Another effect of the duplicity of the interdicts was, as we shall presently see, to increase the number of stipulations in the proceeding by Sponsio.
In the system of statute-process (legis actio), Vindicatio is framed in the form of a judicium duplex. The contention of the defendant was not merely a negation of the plaintiff’s claim, but also an affirmation of the defendant’s claim, a contravindication. Praetor interrogat eum qui cedit an contra vindicet, 2 § 24; cf. 4 § 16. It was not necessary that the cross claims of the parties should be identical in character. On the one side there might be a claim of status, on the other of property, one party vindicating as free the person whom another claimed as slave: or one party vindicating the freedom of a person whom another, as transferee of patria potestas, claimed to be his bondsman (mancipium); or one party asserting the independence (sui juris) of a person whom another claimed as filius familias or as subject to patria potestas, cf. 1 § 134.
Similarly under the legis actio procedure Hereditatis petitio, 3 § 32, comm, would probably be in the form of judicium duplex; for Hereditatis petitio is a species of Vindicatio.
Vindicatio and Hereditatis petitio are related to the actions Communi dividundo and Familiae herciscundae as wholes to parts: the former lay claim to integral ownership and integral succession where the latter merely claim partial ownership and partial succession, Inst. 4, 6, 20. The former became judicia simplicia in the later system of law, while the latter remained judicia duplicia. Ihering, § 52.
In English jurisprudence both parties are said to be equally plaintiffs and equally defendants in the actions called Quare impedit and Replevin.
Uti possidetis was sometimes judicium simplex. We may distinguish three applications of this procedure:
(1) When both parties claim to be in actual possession and one of them is found to be truly in possession without having acquired it from the other by violence, secrecy, or permission. Uti possidetis is then really an interdictum Retinendae possessionis.
(2) When the possession of the actual possessor is found to be vitiated by violence, secrecy, or permission, he is displaced, and the non-possessor is reinstated. Uti possidetis is then in substance and effect interdictum Recuperandae possessionis. In both of these cases it is judicium duplex.
(3) Uti possidetis might further be brought against a defendant who made no contention that he himself was or ought to be in possession, but who was guilty of some disturbance or molestation of the possessor; e. g. by prohibitio: Qui colere fundum prohibetur, possidere prohibetur, Dig. 43, 17, 3, 4. Eum qui aedificare prohibeatur, possidere quoque prohiberi manifestum est, Dig. 41, 2, 52, 1. Etenim videris mihi possessionis controversiam facere, qui prohibes me uti mea possessione, Dig. 43, 17, 3, 2.
Savigny holds that No. (3) was the original application of Uti possidetis; and that Nos. (1) and (2) were subsequent extensions of its employment and due to jurisprudence, i. e. the ingenuity of the jurists: the reverse is the prevalent doctrine, Baron, § 120.
§ 163. The formula arbitraria in Unde vi must have contained the clause, Unless the defendant obey the judge’s order of restitution; the rest is uncertain. The analogy of the other interdicts suggests something to the following effect. If it appear that the defendant has disobeyed the praetor’s order to reinstate the plaintiff, then, unless the defendant comply with the judge’s order of restitution, do thou, judge, condemn him in all the damages the plaintiff shall have sustained.
The mode of restitution would be prescribed by the judex, who would probably require the restitution of all movables that had been removed, though these were not mentioned in the original form of the interdict, § 154.
The jurists who considered that a defendant who desired a formula arbitraria was guilty by confession of the delict laid to his charge, must have supposed that the only function of the judex in this case was assessment of damages (litis aestimatio), Dig. 9, 2, 25, 2.
§ 165. Huschke (Stud. des rom. Rechts. § 11) supposes that the sponsio on Quorum bonorum was of the following form: If the praetor Quintus Caepio in accordance with his edict has granted me possession of the goods left by Turpilia, and if in contravention of his edict thou hast not restored to me the portion of those goods which thou possessest as heir or as occupant, or hast fraudulently ceased to possess; dost thou promise to pay me such and such a sum? I promise. Cic. ad Fam. 7, 21 . . . sponsionem illam nos sine periculo facere posse; ‘Si bonorum Turpiliae possessionem Q. Caepio praetor ex edicto suo mihi dedit.’ (Cf. Lenel, § 227, and p. 359.)
The stricti juris action based on this sponsio would be followed by another, which was doubtless called judicium Secutorium, § 166 a. The latter would probably contain an intentio in factum concepta, of the form: Si Aulus Agerius Numerium Negidium sponsione vicit, and a formula arbitraria such as that already described for the nonpenal procedure: Ni Numerius Negidius Aulo Agerio bona illa judicis arbitrio restituat, quanti ea res erit, judex Numerium Negidium Aulo Agerio condemna.
After the first appearance before the praetor (in jus vocatio) and the issue of the interdict (interdictum redditum or editum) it would be necessary to wait a certain time to see whether it was obeyed or disobeyed by the defendant; and if it was disobeyed, there would be at any time within the period of a year a second in jus vocatio, or at least a reappearance in jure secured by a vadimonium which the parties entered into at the time of their first appearance, for the nomination of the judex and the delivery of the formula arbitraria, if the procedure was non-penal; or for the sponsio and delivery of the formulas of action on the sponsio and the judicium secutorium, if the procedure was penal.
The interdict or command of the magistrate, like the law or command of the legislator, has two members (protasis or minor premiss, and apodosis or conclusion); or two terms, an antecedent (a title expressed by the middle term B) and a consequent (an obligation expressed by the major term A). The antecedent term is usually introduced by a relative (Quorum bonorum, Unde dejecisti, Uti possidetis, &c.) equivalent to a Si: accordingly any interdict may be paraphrased by the proposition: If such and such antecedent title [B, middle term] exists, then thou [C, minor term] art under such and such consequent obligation [A, major term]: and this antecedent, simple as it may appear, is usually analysable into a variety of conditions. Thus in Quorum bonorum the antecedent clause and question for the judex is not only whether certain goods are detained by the defendant, but also whether the plaintiff had obtained a grant of possession of these goods, whether such grant was rightfully obtained, and in accordance with the provisions of the edict, &c.
§ 166. From the two sponsiones and two restipulationes which are mentioned, it appears that Gaius is now speaking of double interdicts, and from the words eum fundum easve aedes, § 166 a, it appears that he is speaking not of Utrubi but of Uti possidetis.
After a first in jus vocatio in which an interdict Uti possidetis had been obtained, there took place, by prearrangement, a molestation of one of the litigants by the other. In the disorderly beginnings of society this molestation was doubtless often in reality a turbulent defiance of the magisterial interdict: but in more orderly periods both parties would be desirous of trying their right by legal course, and the steps taken by both would be prearranged with a view of satisfying the conditions of interdict procedure (vis ex conventu). So a trespass, or at least an act that contains many of the elements of a trespass, is often arranged to be committed for the purpose of enabling parties to try a right before English tribunals. Cf. §§ 166, 170; Cic. pro Caec. 1, 7, 8, 10, 11; pro Tull. 8; Roby, App. D, p. 515.
It is probable that the lacuna preceding this paragraph contained an explanation of vis ex conventu and of other parts of the procedure in interdicta duplicia.
After the vis ex conventu had been simulated, there took place a second in jus vocatio, or reappearance in jure in pursuance of the vadimonium, at which the parties entered into five different stipulations.
Just as interdict procedure was necessary in order to determine which litigant should have interim possession pending the vindicatio, so it was necessary to determine who should have interim possession pending a possibly protracted interdict procedure. This was accomplished by means of Fructus licitatio, which took place in the second appearance before the praetor, and was followed by either (a) the Fructuaria stipulatio, or satisdatio judicatum solvi.
Each party then wagered a penal sum in two characters, for each party was both plaintiff and defendant: and, as a sponsio was a unilateral contract, in order to produce a bilateral contract, that is, to bind both parties and constitute a single bet or wager in the modern sense of the term, it was necessary to have two stipulations, that is, a sponsio and a restipulatio. For the purpose, therefore, of making two wagers the parties entered into four stipulations (two sponsions and two restipulations); i. e. (b) one sponsio and (c) one restipulatio in which a litigant was promisor and promisee as plaintiff, and (d) a second sponsio and (e) a second restipulatio in which he was promisor and promisee as defendant. The sponsio would be a stipulation to the following effect: Si adversus edictum praetoris possidenti mihi vis a te facta est, tot nummos dare spondes? Spondeo: the restipulatio to the following effect: Si adversus edictum praetoris possidenti tibi vis a me facta non est, tot nummos dare spondes? Spondeo. Thereby each party would be bound to pay, or entitled to receive, two penal sums, according as the actions brought on these four stipulations decided the issue which the stipulations raised.
A judex was then appointed who tried the four actions.
Then if the victor in the four actions had not been the higher bidder at the Licitatio, the judex decided a fifth and sixth action: namely one called judicium Secutorium or Cascellianum, which had a formula arbitraria, and whereby possession of the movable or immovable and its fruits was recovered from the higher bidder; and another on (a) the Fructuaria stipulatio, to recover from the higher bidder a penal sum equal to the value of the fructus.
Instead of suing on (a) the Fructuaria stipulatio the victor had the option of bringing judicium Secutorium for the recovery of this penal sum, and then he was protected against the event of his opponent’s insolvency by sureties (satisdatio). It may be asked what compensating disadvantage of this course should ever induce the victor to sue on (a) Fructuaria stipulatio. Perhaps, as Krueger suggests, if he sued for the penal sum by Secutorium with satisdatio, then when he brought Cascellianum he only recovered the Res without the interim fructus. The satisdatio would thus increase his certainty of obtaining the amount of the penal sum, but would diminish by the value of the fructus the total amount recovered.
Corresponding to the penal sum incurred by Fructus licitatio, and secured by (a) Fructuaria stipulatio or Satisdatio of the litigant who obtains possession pending interdict procedure, was the liability in twice the value of the fructus incurred by the litigant who obtained possession by Vindiciae dicendae pending statute-process. Such at least appears to be the import of a partly conjectural fragment of the Twelve Tables (Tab. 12, 3): Si vindiciam falsam tulit, si velit is . . . tor arbitros tris dato, eorum arbitrio . . . fructus duplione damnum decidito. Festus. ‘When temporary possession has been wrongfully obtained (the question of property and the value of the fruits of possession) may be decided by three arbiters, by whose arbitration the wrongful possessor shall pay as a penalty twice the value of the fruits of possession to the true proprietor.’
§ 170. From this paragraph it appears that as in Real actions the defendant who declined to give satisdatio judicatum solvi and thus impeded the process of the action was deprived of possession by the interdicts Quem fundum, Quam hereditatem, Quem usumfructum, § 156, comm.; so a suitor whose contumacious refusal to take the regular steps prevented interdict procedure from accomplishing its normal course was deprived of possession by interdicta Secundaria.
The mention of vis (qui vim non faciet) shows that, subsequent to the issue of the interdict and antecedent to further proceedings, one act of the forensic drama was a conventional ejectment (vis ex conventu), cf. § 166, comm.; which has been identified by some writers with what is called Deductio quae moribus fit in suits by Sponsio, and perhaps with the Manuum consertio in Sacramentum, § 88, comm., § 13, comm.
The inquiry into the nature of possession has been purposely postponed hitherto in order not to interrupt the exposition by Gaius of the details of the possessory interdicts (Utrubi, Uti possidetis, Unde vi); i. e. those interdicts in which the mere fact of possession is itself a title to the continuance or restoration of possession (as to the nature of possession cf. Sohm, § 67).
Possession may be defined as a relation which consists of two elements; Detention, or physical power over a thing, exercised either by oneself or by some other person as one’s representative, e. g. by depositarius or commodatarius for depositor or commodator, and Animus domini, a certain intention on the part of the person in possession, the intention of holding it against others as a proprietor would, and so of deriving from it the benefits of ownership. Theophilus, the colleague of Tribonian and author of the Greek version of Justinian’s Institutes, says: νέμεσθαί ἐστι τὸ ψυχῃ̂ δεσπόζοντος κατέχειν, 3, 39, 2. The meaning of this definition will best appear from an examination of the instances in which according to the jurists Possession does or does not exist; and in particular from the contrast of the cases where Possession is present with those where Detention, i. e. mere physical control for another, the right of excluding others belonging to him, is present but Possession, which is protected by possessory interdicts, is absent, as e. g. in the case of depositarius or commodatarius. Thus Possession in the sense in which we are using it is equivalent to juristic Possession.
Possession in this sense, as opposed to mere Detention, is called Possessio civilis, or simply Possessio.
Mere detention is called Possessio naturalis, corporaliter, Naturaliter tenere, In possessione esse. (For various meanings of the terms Possessio civilis—naturalis cf. Windscheid, Pand. 1 § 148, n. 12. Dernburg, Pand. 1 § 175.)
Juristic possession (jus possessionis) does not depend on a legal title to possess (jus possidendi) like ownership, but simply on the fact of a man’s having actual control of a thing with the intention of maintaining it. ‘Hujus autem interdicti (uti Possidetis) proponendi causa haec fuit, quod separata esse debet possessio a proprietate; fieri etenim potest, ut alter possessor sit, dominus non sit, alter dominus quidem sit, possessor vero non sit; fieri potest, ut et possessor idem et dominus sit.’ Dig. 43, 17, 1, 2. Hence as far as the possessory interdicts are concerned the law is indifferent whether the possession is that of an owner or of a bona fide, or even that of a mala fide possessor. But it is to be remembered at the same time that these interdicts do not in any way shut out the owner who has a right to possession from asserting his claim by vindicatio.
The characteristic of possessio civilis is the combination of physical control with the Animus domini: but in certain singular or abnormal instances we shall find that this differentia is wanting, and physical control or detention in the name of another (alieno nomine), i. e. possessio naturalis, is treated as juristic possession, e. g. in the case of pledgee or mortgagee.
Possession accompanied with certain other extraneous conditions, namely Titulus, Bona fides, and the absence of furtum, is transformed by a certain lapse of time into ownership; and is called Usucapion-possession, 2 §§ 40-61, comm. Our present purpose is with Possession apart from these foreign elements: the Possession which, as protected by Utrubi, Uti possidetis, and Unde vi, is often called Interdict-possession.
The slave and filiusfamilias were incapable of juristic possession. Quod ex justa causa corporaliter a servo tenetur, id in peculio servi est et peculium, quod servus civiliter quidem possidere non posset sed naturaliter tenet, dominus creditur possidere, Dig. 41, 2, 24. ‘When a slave has corporeal control of a thing originating from some legal cause, the thing is in his peculium, and this peculium which he cannot have juristic possession of, though he holds it in fact, his master has possession of’ Qui in aliena potestate sunt, rem peculiarem tenere possunt, habere possidere non possunt, quia possessio non tantum corporis, sed et juris est, Dig. 41, 2, 49, 1. ‘A person under power is able to keep under his actual control a thing belonging to his peculium, but not to possess it, for the conditions of possession are not purely physical, but partly legal;’ i. e. possession is not mere physical detention, but detention by a person who is regarded by law as being capable of possessing. In respect of this incapacity of filiusfamilias we must except the peculium castrense and quasicastrense. Filiusfamilias et maxime miles in castris adquisitum usucapiet, Dig. 41, 3, 4, 1. ‘What a filiusfamilias and particularly what as a soldier he acquires in the field is converted by usucapion-possession into ownership.’
A manager or agent (procurator) has detention, not possession. Nec idem est possidere et alieno nomine possidere; nam possidet cujus nomine possidetur; procurator alienae possessioni praestat ministerium, Dig. 41, 2, 18, pr. ‘Possession differs from detention in the name of another, for he has possession of a thing in whose name it is held by another. An agent is the instrument of another person’s possession.’ Generaliter quisquis omnino nostro nomine sit in possessione, veluti procurator, hospes, amicus, nos possidere videmur, Dig. 41, 2, 9. ‘The detention of a thing by another entirely for us as that of a procurator, guest, or friend is our possession.’ Cf. 2 § 95. Inst. 2, 9, 5.
A borrower (commodatarius) has only detention, the lender (commodator) retains possession. Rei commodatae et possessionem et proprietatem retinemus, Dig. 13, 6, 8.
A hirer (conductor) has only detention, the letter (locator) possession. Et fructuarius, et colonus, et inquilinus sunt in praedio et tamen non possident, Dig. 43, 26, 6, 2. ‘The usufructuary, hirer of land, and lodger have occupation, but not possession.’ Per colonos et inquilinos aut servos nostros possidemus, Dig. 41, 2, 25, 1. ‘Our farmers, lodgers, and slaves are instruments of our possession.’
The Emphyteuta, as is thought by most modern writers, though a contrary opinion is held by Windscheid (1 § 15, 4, n. 7) and others, had possession. For the nature of Emphyteusis cf. 3 § 145, comm. The emphyteuta had a jus in re nearly amounting to ownership, for he could recover the land by actio vectigalis in rem, which was analogous to vindicatio from any possessor and, as long as he paid his rent (vectigal) he was irremovable. The real right of the emphyteuta must not, however, be confounded with his possession, for, like ownership and possession, they are two distinct legal relations, the one being protected by the actio in rem, the other by a possessory interdict. The dominus probably retained usucapion-possession by means of the tenant.
The mortgagor or pledgor had usucapion-possession, the mortgagee or pledgee had interdict-possession. Qui pignori dedit ad usucapionem tantum possidet; quod ad reliquas omnes causas pertinet, qui accepit possidet, Dig. 41, 3, 16. The mortgagee could recover the pledge by actio in rem quasi Serviana or hypothecaria, Inst. 4, 6, 7. But this is the action by which the real right of the mortgagee or pledgee is asserted, which must be distinguished from the possessory interdict by which his possession is protected. Thus instead of identifying the mortgagee’s jus in re and his interdict-possession, it is correct to regard his jus in re and his interdict-possession as distinct though possibly concurrent. In a hypotheca, indeed, which is an agreement establishing a jus in re without delivery, the mortgagee or pledgee acquired no possession. The usucapion-possession attached to the mortgagor or pledgor by means of the mortgagee or pledgee if possession was transferred, and this was in the interest of the mortgagee or pledgee, whose security against third persons would be strengthened through the consequent acquisition of ownership by the mortgagor or pledgor.
The depositary has mere detention, the depositor retaining his interdict-possession. The depositary only acquires possession in one case, that is, when he is made a stake-holder for this very purpose, Dig. 16, 3, 17, 1. ‘Not only the property but also the possession of the thing deposited remains with the depositor, except when a thing is deposited with a stake-holder (sequester) not simply for safe custody: for in this case the sequestrator possesses, the object being to prevent the time of usucapion from proceeding.’ It seems, then, that in such Sequestration the interim usucapion-possession cannot be counted by the victor in the suit, Dig. 41, 2, 39.
With Permissive holding of a thing (precarium) possession passes, unless it is expressly agreed that only detention shall pass. Meminisse autem nos oportet, eum qui precario habet etiam possidere, Dig. 43, 26, 4, 1. ‘We must remember that the holder of a thing by permission has possession.’ Is qui rogavit, ut precario in fundo moretur, non possidet, sed possessio apud eum qui concessit remanet, Dig. 43, 26, 6, 2. ‘He who has asked to be allowed to remain on land merely at the will of the owner does not possess, but possession remains with the grantor.’ The grantor always retained usucapion-possession, Dig. 43, 26, 15, 4.
The person in the enjoyment of a personal servitude has no possession. Usufructuarius usucapere servum non potest, primum quia non possidet, Dig. 41, 1, 10, 5. ‘The usufructuary cannot acquire the slave by usucapion, in the first place because he has no possession.’ Naturaliter videtur possidere is qui usumfructum habet, Dig. 41, 2, 12, pr. ‘The usufructuary seems to have only natural, not juristic possession.’
[It would be a fallacy to argue that detention is possession because it is naturalis possessio, just as it would be to argue that nine is ten because it is ten minus one, for an epithet sometimes detracts from, instead of adding to, the connotation of a word.]
As the usufructuary has no possession, it follows a fortiori that the usuary has no possession. [Although the jus in re called usus must be distinguished from possession, the words usucapio, usurpatio show that in the older language usus = possessio.]
Servitudes, though not the subject of possession, yet as res incorporales, were the subject of quasi-possession, § 139, e. g. Qui fundi possessionem vel ususfructus quasi possessionem amisit, Dig. 4, 6, 23, 2; Si quis diuturno usu et longa quasi possessione jus aquae ducendae nactus sit, Dig. 8, 5. 10, pr.: which was called juris possessio in contradiction to true possession or corporis possessio; Qui possessionem vel corporis vel juris adeptus est, Dig. 43, 26, 2, 3: though if juris possessio was the proper name for possession of a fraction of property, possession that bore the same relation to the totality of property should have been called, not corporis possessio, but dominii possessio.
The quasi-possession of servitudes, which consists in the actual enjoyment of the right, whether under a valid title or not, like the possession of corporeal things, was protected by interdicts. The quasi-possession of rural servitudes, such as iter, actus, via, jus aquae ducendae, &c., was protected by special interdicts: e. g. Quo itinere actuque privato, quo de agitur, vel via hoc anno nec vi nec clam nec precario ab illo usus es, quo minus ita utaris, vim fieri veto, Dig. 43, 19, 1, pr. ‘The foot-way, horse-way, carriage-way in question, which thou hast used within a year without having done so by violence, or clandestinely, or by permission in respect of the opposite party, the violent hindrance of thy continuing to use them I prohibit.’
Urbane servitudes, whether positive, as jus tigni immittendi, or negative, as jus altius non tollendi, being closely connected with possession of an immovable, according to Savigny, were always protected by Uti possidetis: according to Vangerow, the protection of the status quo was always by interdictum Quod vi aut clam or Operis novi nuntiatio, § 355. Personal servitudes, e. g. ususfructus, usus, fructus, were protected, according to circumstances, by Uti possidetis, Utrubi, or Unde vi, with a special differentiation, which constituted them interdicta utilia, Vat. fr. 90.
Four of the cases we have mentioned, the possession of the emphyteuta, the mortgagee, the sequestrator, and the permissive holder, are generally regarded as anomalous; for possession is composed of two elements, physical detention and the intention of holding the property as owner (animus domini), and none of these four possessors can be said to have the animus domini. In these four cases, and these alone, it is necessary to assume that the law recognized a derivative or transferred possession, in which one of the elements of original possession, the animus domini, is absent, and replaced by what may be called the animus alienam possessionem exercendi. (For a different view of the animus required as an element of possession, which is applicable in all cases alike, see Sohm, § 67, n. 3.)
In three of the above-mentioned cases usucapion-possession remained with the person from whom the interdict-possession was derived (the person from whom the emphyteusis was held, the mortgagor or pledgor, the person who allowed the thing to be held precariously), and only interdict-possession passed to the derivative possessor (the emphyteuta, the mortgagee or pledgee, the person allowed to hold the thing precariously). In all the four cases (including Sequestration) the dominus lost the protection of the interdicts Retinendae possessionis, which were transferred to the derivative possessors. The grantor of precarious tenancy was also protected by the interdict De precario, an interdict Recuperandae possessionis.
The Superficiarius (holder of a Real right (jus in re) in a house of which the owner of the ground is proprietor, e. g. a person who with permission of the landowner has built out of his own materials a house on and therefore belonging to another person’s land, ‘quod inaedificatur solo solo cedit’) has, according to Savigny, only juris quasi-possessio: but this is inconsistent with the fact that he is protected by the interdicts Unde vi and De precario, Dig. 43, 16, 1, 5. According to Vangerow he has Derivative possession like the four above-mentioned: but this is inconsistent with the fact that he is protected by the special interdict De superficiebus, while the owner of the soil retains the protection of Uti possidetis, Dig. 43, 17, 3, 7, which in Derivative possession is transferred to the Derivative possessor. The true doctrine, then, appears to be that Superficiarius has Original possession of the house, though the landlord has possession of the soil, Baron, § 183 (but cf. on this very difficult subject Windscheid, 1 § 154, n. 7). Superficies as a real right would be vindicated by a special formula in factum concepta, which must be distinguished from the possessory remedy—the interdictum de superficiebus—Ait praetor: Uti ex lege locationis sive conductionis superficie, qua de agitur, nec vi nec clam nec precario alter ab altero fruimini, quo minus ita fruimini, vim furi veto. Si qua alia actio de superficie postulabitur causa cognita dabo. Savigny, 5, p. 81. Lenel, § 249.
As possession consists of two elements, one corporeal and one mental, it is evident that it cannot be acquired by a purely mental act. Apiscimur possessionem corpore et animo, neque per se animo aut per se corpore, Dig. 41, 2, 3, 1. ‘We acquire possession by the conjunction of a corporeal and a mental act, and not by either separately.’ Neratius et Proculus et solo animo non posse nos adquirere possessionem aiunt, si non antecedat naturalis possessio, Ibid. 3. ‘Intention alone does not suffice for acquiring juristic possession unless preceded by natural possession or detention.’ Detention necessarily implies not corporeal contact, but corporeal control, and is the physical power of dealing with a subject as owner and excluding any one else. The acquisition of detention consists in the fact of obtaining this power which is never by a fictitious or symbolical act, but by a real physical change of relation. The continuance of possession requires a continuance of both the elements, which are essential to its acquisition, that is, both physical control and the intention of enjoying as owner, or at least on one’s own account. Fere quibuscumque modis obligamur, isdem in contrarium actis liberamur, cum quibus modis adquirimus, isdem in contrarium actis amittimus. Ut igitur nulla possessio adquiri nisi animo et corpore potest, ita nulla amittitur, nisi in qua utrumque (utrumque = alterutrum, or read utcunque or utrumcunque) in contrarium actum est, Dig. 50, 17, 153. ‘As obligation is dissolved by a reversal of the conditions under which it is created, so possession is lost by a reversal of the conditions under which it is acquired. As its acquisition demands the concurrence of a corporeal and a mental condition, so its termination requires the reversal of one or the other.’ Ejus quidem quod corpore nostro teneremus [dicam] possessionem amitti vel animo vel etiam corpore, Dig. 41, 2, 44, 1. ‘When we detain in person, possession may be terminated by either a mental or a physical change.’ Windscheid, 1 § 156, n. 2.
The physical condition, however, is not to be interpreted so strictly in the continuance of possession as in its commencement; for continued possession permits a temporary suspension of physical control, and only requires the power of reproducing this relation at will: for instance, it is not lost if we have left a thing unintentionally in a forest, but remember the exact spot; or have stowed a thing in a place of security, but forgot for the moment where we put it; or abandon an Alpine pasture in winter, with the intention of revisiting it on the return of summer, Dig. 41, 2, 3, 13. ‘Nerva the son is of opinion that the possession of movables, excepting slaves, only lasts so long as they are in our custody, that is so long as we have power of obtaining natural possession or detention of them.’ There was an exception in the case of slaves, for a slave while he was a fugitive was regarded as still in his master’s possession, and in the case of land, for a man did not lose possession of his land which had been invaded in his absence until he had notice of the invasion; that is to say, he retained possession in the interim solely by his mental disposition. Nam saltus hibernos et aestivos, quorum possessio retinetur animo, licet neque servum neque colonum ibi habeamus, quamvis saltus proposito possidendi fuerit alius ingressus, tamdiu priorem possidere dictum est, quamdiu possessionem ab alio occupatam ignoraret, Dig. 41, 2, 44, 2, 45, 46. ‘When a winter or summer pasture, retained in possession without the instrumentality of slaves or tenants, solely by the mental relation, is invaded by a stranger who has the intention of taking possession of it, the prior possessor is not regarded as ejected from possession until he has notice of the invasion. It is by reference to this laxer interpretation and to these exceptions that we can understand the opinion mentioned by Gaius, § 153, that possession may be retained without a continuance of corporeal detention.
A guardian acting alone may of course acquire possession for an infant ward, that is, a child under the age of seven. But what is peculiar is that an infans, who is generally incapable of performing any legal act, is able, it would seem, also to acquire possession for himself, and this even without the sanction of his tutor in the case of a gift, though requiring his sanction in other cases. Dig, 41, 2, 22, 2; Cod. 7, 32, 3. In other matters, as we have seen, tutoris auctoritas could only be given to a child infantia major, i. e. after completion of seven years of age.
The possessor of a whole or a substance formed by the combination of various parts (universitas rerum distantium) does not separately possess with intention of ownership the various elements of which it is composed. If, then, a man begins by possessing the whole and completes the usucapion of the whole before its dissolution into its component parts, the result will depend on the question whether all the parts belonged to the original proprietor of the whole or some of them belonged to a third person. If some of the materials belonged to a third proprietor, then, as these have not been separately possessed during the period of combination, the usucapion of them only begins to run after the dissolution of the whole, Dig. 6, 1, 23, 7; Dig. 41, 1, 7, 11. This rule is not a singularity of timber (Dig. 47, 3), but applies to all materials that have been combined into a whole, whether movable, e. g. a flock of sheep, or immovable.
If all the materials belonged to the owner of the whole, then he who acquires by usucapion the whole is owner of all the materials if they are subsequently separated, just as he would be if he had acquired property in the whole by tradition or any other valid form of alienation from the original proprietor.
If the dissolution of the whole precedes the completion of usucapion, then the usucapion of the separate materials has to begin ab initio, Dig. 41, 3, 23, pr. Thus, if a man has possessed a house for nine years and six months, he will complete its usucapion or prescription in another four months according to the law of Justinian: but if any of the materials (windows, doors, columns, tiles) are separated, he will require three years to acquire them by usucapion as movables.
If. on the contrary, a person begins by possessing the materials separately and after a time combines them into a whole, the question whether his usucapion of the materials continues to run depends on the principles which govern the loss of possession. Possession is not lost by the absence of animus possidendi, but by a positive animus non possidendi. As this cannot here be alleged to exist, the usucapion of the materials will continue to run in spite of their combination and will be completed as soon as if they had remained separate, Dig. 41, 3, 30, 1. An exception is produced by the prohibition of the Twelve Tables to sue for building materials as long as they form a portion of a house (tignum junctum aedibus, Dig. 47, 3, 1, pr.): for, as agere non valenti non currit praescriptio, § 110, comm., the usucapion of the timber must be suspended until the house from any cause is demolished. Inst. 2, 1, 29. Vangerow, § 204.
Having passed in review the nature of Possession and the form of the Possessory interdicts, we may now examine the often mooted question what is the relation of Possession to the classification of Rights as Real or Personal: to which division of actions, Real or Personal, is procedure by the Possessory interdicts to be assimilated?
The answer to this must begin by distinguishing mere Possession or Interdict-possession, from Possession associated with Titulus, Bona fides, absence of furtum, that is from Usucapion-possession. The latter is incipient property, and is recoverable by actio in rem Publiciana, 2 § 41; that is, it is treated in respect of its remedy as if it were perfect property in respect of all persons except the owner: Usucapion-possession, then, though it is always liable to be defeated by the owner making good his superior claim (except in the case of the possessor having a bonitary title), may be regarded as a Real right and is recoverable from third parties by a Real action.
All interdict procedure belongs to the class of Personal actions for the enforcement of obligations, Modestinus, Dig. 44, 7, 52, 6. Jure honorario obligamur ex his, quae edicto perpetuo vel magistratu fieri praecipiuntur vel fieri prohibentur. Interdicta omnia, licet in rem videantur concepta, vi tamen ipsa personalia sunt, Ulpian, Dig. 43, 1, 3. ‘All interdicts, though impersonal (Real) in terms, are in substance Personal actions.’
The party against whom judgment was given in interdict procedure was, it would seem, technically guilty of having disobeyed the mandate contained in the interdict of the magistrate. Interdict procedure, which was carried on by means of a sponsio poenalis, has in some respects more similarity to a delictal than to a strictly civil action. That some interdicts in particular (interdictum fraudatorium, interdictum de vi, and Unde vi) were classed with actions ex delicto, appears from the fact that they were only maintainable against the wrong-doer within a year from their nativity, though originally this was otherwise in the case of the interdictum de vi armata, Cic. ad Fam. 15, 16; and were only maintainable against the heir of the wrong-doer so far as he was enriched by the wrong of his predecessor (quatenus ad eum pervenit . . . ut tamen lucrum ei extorqueatur, Dig. 44, 7, 35, pr.), features which the interdicts have in common with other unilaterally penal actions. Moreover, the interdicta retinendae possessionis appear to have been based, as we have seen, on an act of feigned violence (vis ex conventu), that is on an act of a delictal kind.
The right of a person who has been dispossessed to be reinstated in possession is a secondary right based on the violation of some primary right. What was the nature of that primary right? According to Savigny it was the right of a freeman to be exempt from violence or corporeal molestation; not the right of a mere possessor to continue in possession till the owner has vindicated his right. He denies, that is, that the mere fact of Possession can give a title investing the possessor who, it is to be remembered, may even be a thief or other malâ fide possessor, with a right to continue in possession; and bases the right of reinstatement on another right, one of the rights that we have called Primordial, the right to immunity from corporeal violence. But the more prevalent view now is that the object of the possessory interdicts, whatever may be their formal character, is to afford fuller protection to ownership, as it is the owner who is, as a rule, in possession, and if he is disturbed in it he finds proof of his possession, which is all that the interdicts require—a much easier task than proof of ownership, which is proverbially difficult. This advantage, however, cannot be given him, unless it is also extended to the possessor who is not owner, and even to the malâ fide possessor, since otherwise the question of proof of title would not be avoided.
According to this theory then possession is to be regarded as conferring a right against the person interfering with it ancillary to that of ownership. Cf. Ihering, Ueber den Grund des Besitzesschutzes; Sohm, § 67.
The classical jurists seem not to have considered the question. The delict adjudicated upon in interdict procedure is in form the violation of a public duty, the duty of obedience to the magistrate. That it was in substance the violation of a private or civil right of a person who has been dispossessed did not appear on the face of the proceedings; and consequently the nature of this right had not to be investigated.
Possession, which involves a right against the world to freedom from molestation till a better right is shown, came to be regarded by the Roman jurists and in subsequent legal history as de facto ownership standing alongside and in close relationship to legal ownership. So the contrast between the possessory interdicts and vindicatio reminds Englishmen of the old division of actions in English law into Possessory and Droitural, which our mediaeval lawyers adopted from the Civil and Canon Law. According to this view the Interdicts Uti Possidetis and Utrubi were, at least at the time when Gaius wrote, not delictal, except in form, but possessory in character, the infringement of the rights they protected wanting the ordinary requisites of a delict. But though the possessory interdicts seem to have for their object simply the protection of possession, as the object of vindicatio is simply the protection of ownership, they are actions in personam not in rem, that is they only he against the party who immediately interferes with the possession of another, not against third parties.
The primary right on which they are founded cannot be better stated than in the words—‘possessor hoc ipso, quod possessor est, plus juris habet, quam ille, qui non possidet.’ The law assumes that the possessor is owner till the contrary is proved in an appropriate action. Cf. Bruns, Die Besitzklagen des romischen und heutigen Rechts.
That in a given system of positive law what is in substance an action for the protection of property may assume the form of an action on Delict, we may convince ourselves by remembering some of the anomalies of the scheme of actions in English law. Trover and Detinue, which were brought to recover movable property, were kinds of Trespass, that is of action on delict: Assumpsit, the remedy for enforcing a simple contract, was externally a species of Trespass on the Case, another action on delict: and Ejectment, practically the sole real action for the recovery of land, was theoretically another species of Trespass.
The Interdict, as originating action, bears some resemblance to a now abolished institution of English law, the Original writ. But the Original writ was a mandate addressed by the head of administration or judicature to the sheriff; that is, to an executive officer, not, as the interdict, to the individual suitor. Besides, this mandate of the crown required the sheriff to command a defendant to obey the crown by obeying the precepts of the legislator: the peculiarity of the interdict, as appears from the preceding account of its character, was that it formed of itself the whole of the law which the suitor was commanded to obey. The possessory interdicts, for instance, simple and meagre as they outwardly seemed, really comprised the whole law that governed the protection of mere Possession. And the same is true of all the other interdicts which have been enumerated, so that the interdicts had the effect of giving protection to rights outside the ordinary law, through the direct interposition of the magistrate. This, as already observed, is apparently the true interpretation of the terms in which Gaius expresses the distinctive feature of Interdicts: certis ex causis Praetor aut Proconsul principaliter auctoritatem suam finiendis controversiis interponit, § 139: i. e. in issuing an interdict the magistrate exercised a principalis auctoritas, wielded a sovereign authority.
But though originally the subjects of the Interdict had been omitted by the ordinary law, as matters rather of administration than of legislation; yet after many individual Interdicts had been issued, and their conditions had been generalized by the authorities of jurisprudence; after, moreover, the rules which would be observed in their issue had been announced by the magistrate in his annual proclamation; the area of questions decided by Interdict was practically as much subject to law as any other department of Roman life. The code of rules promulgated by the magistrate (jus praetorium), being accepted by the state, was just as much law as if it had been enacted by the legislative assemblies: so that finally Interdict procedure differed from ordinary litigation merely by a fringe of form, that served as a memento of its historic origin, the extraordinary power of the magistrate in republican Rome: this fringe of form disappeared with the formulary process, the procedure in the domain once managed by Interdict being assimilated to the procedure employed in all the other departments of the code; thus Justinian finds it unnecessary to speak in his Institutes of the old forms of Interdict procedure. Inst. 4, 15, 8.
§ 171. —Modo | pecuniaria poena modo iurisiurandi religione — | —NA; eaque praetor — | —NA aduersus infitiantes ex quibusdam causis dupli actio constituitur, ueluti si iudicati aut depensi aut damni iniuriae aut legatorum per damnationem relictorum nomine agitur; ex quibusdam causis sponsionem facere permittitur, ueluti de pecunia certa credita et pecunia constituta; sed certae quidem creditae pecuniae tertiae partis, constitutae uero pecuniae partis dimidiae.
Inst. 4, 16, pr.
§ 172. Quodsi neque sponsionis neque dupli actionis periculum ei cum quo agitur iniungatur, ac ne statim quidem ab initio pluris quam simpli sit actio, permittit praetor iusiurandum exigere non calvmniae ca vsa infitias ire. unde quamuis heredes uel qui heredum loco ha|bentur, — obligati sint, item feminae pupilli|que eximantur periculo sponsionis, iubet tamen eos iurare.
Inst. 4, 16, 1.
§ 173. Statim autem ab initio pluris quam simpli actio est ueluti furti manifesti quadrupli, nec manifesti dupli, concepti et oblati tripli. nam ex his causis et aliis quibusdam, siue quis neget siue fateatur, pluris quam simpli est actio.
Inst. l. c.
§ 174. Actoris quoque calumnia coercetur modo calumniae iudicio, modo contrario, modo iureiurando, modo restipulatione.
Inst. l. c.
§ 175. Et quidem calumniae iudicium aduersus omnes actiones locum habet, et est decimae partis, praeterquam quod aduersus adsertorem tertiae partis est.
§ 176. Liberum est autem ei cum quo agitur, aut calumniae iudicium opponere aut iusiurandum exigere, non calumniae causa agere.
§ 177. Contrarium autem iudicium ex certis causis constituitur, ueluti si iniuriarum agatur, et si cum muliere eo nomine agatur, quod dicatur uentris nomine in possessionem missa dolo malo ad alium possessionem transtulisse, et si quis eo nomine agat, quod dicat se a praetore in possessionem missum ab alio quo admissum non esse. sed aduersus iniuriarum quidem actionem decimae partis datur, aduersus uero duas istas quintae.
§ 178. Seuerior autem coercitio est per contrarium iudicium. nam calumniae iudicio decimae partis nemo damnatur nisi qui intellegit non recte se agere, sed uexandi aduersarii gratia actionem instituit, potiusque ex iudicis errore uel iniquitate uictoriam sperat quam ex causa ueritatis; calumnia enim in adfectu est, sicut furti crimen. contrario uero iudicio omni modo damnatur actor, si causam non tenuerit, licet aliqua opinione inductus crediderit se recte agere.
§ 179. Vtique autem ex quibus causis contrario iudicio agi potest, etiam calumniae iudicium locum habet; sed alterutro tantum iudicio agere permittitur. qua ratione si iusiurandum de calumnia exactum fuerit, quemadmodum calumniae iudicium non datur, ita et contrarium dari non debet.
§ 180. Restipulationis quoque poena ex certis causis fieri solet; et quemadmodum contrario iudicio omni modo condemnatur actor, si causam non tenuerit, nec requiritur, an scierit non recte se agere, ita etiam restipulationis poena omni modo damnatur actor, si uincere non potuerit.
§ 181. Qui autem restipulationis poenam patitur, ei neque calumniae iudicium opponitur neque iurisiurandi religio iniungitur; nam contrarium iudicium ex his causis locum non habere palam est.
§ 182. Quibusdam iudiciis damnati ignominiosi fiunt, ueluti furti, ui bonorum raptorum, iniuriarum; item pro socio, fiduciae, tutelae, mandati, depositi. sed furti aut ui 〈bonorum〉 raptorum aut iniuriarum non solum damnati notantur ignominia, sed etiam pacti, ut in edicto praetoris scriptum est; et recte: plurimum enim interest, utrum ex delicto aliquis an ex contractu debitor sit nec tamen ulla parte edicti id ipsum nominatim exprimitur, ut aliquis ignominiosus sit; sed qui prohibetur et pro alio postulare et cognitorem dare procuratoremue habere, item 〈pro〉curatorio aut cognitorio nomine iudicio interuenire, ignominiosus esse dicitur.
Inst. 4, 16, 2.
§ 183. In summa sciendum est eum qui cum aliquo consistere uelit 〈in ius uocare〉 oportere et eum qui uocatus est, si non uenerit, poenam ex edicto praetoris committere. quasdam tamen personas sine permissu praetoris in ius uocare non licet, ueluti parentes patronos patronas, item liberos et parentes patroni patronaeue; et in eum qui aduersus ea egerit poena constituitur.
Inst. 4, 16, 3.
§ 184. Cum autem in ius uocatus fuerit aduersarius neque eo die finiri potuerit negotium, uadimonium ei faciendum est, id est ut promittat se certo die sisti.
§ 185. Fiunt autem uadimonia quibusdam ex causis pura, id est sine satisdatione, quibusdam cum satisdatione, quibusdam iureiurando, quibusdam recuperatoribus suppositis, id est ut qui non steterit, is protinus a recuperatoribus in summam uadimonii condemnetur; eaque singula diligenter praetoris edicto significantur.
§ 186. Et siquidem iudicati depensiue agetur, tanti fit uadimonium, quanti ea res erit; si uero ex ceteris causis, quanti actor iurauerit non calumniae causa postulare sibi uadimonium promitti. nec tamen 〈pluris quam partis dimidiae, nec〉 pluribus quam sestertium c m fit uadimonium. itaque si centum milium res erit, nec iudicati depensiue agetur, non plus quam sestertium quinquaginta milium fit uadimonium.
§ 187. Quas autem personas sine permissu praetoris inpune in ius uocare non possumus, easdem nec uadimonio inuitas obligare possumus praeterquam si praetor aditus permittat.
§ 171. We have now to notice that in order to prevent vexatious litigation, both plaintiffs and defendants are restrained sometimes by pecuniary penalties, sometimes by the sanction of an oath which they are compelled to take, sometimes by fear of suffering infamy. The defendant’s denial of his obligation is in certain cases punished by the duplication of the damages to be recovered. This occurs in an action on a judgment debt, or for money paid by a sponsor (depensi), or for unlawful damage to property (damni injuriae), or for legacies left in the form per damnationem. Sometimes a wager of a penal sum is permitted, as in an action of loan of money, or on a promise to pay a preexisting money debt (pecunia constituta), in the former case of one third of the sum in dispute, in the latter of one half.
§ 172. In the absence of the risk of a penal wager, or of duplication of damages on account of denial, and when the action is not one which apart from any denial entails more than simple damages, the plaintiff is allowed by the Praetor to exact an oath from the defendant that his denial is not vexatious. Accordingly, although heirs and those in the position of heirs are always exempt from penalty, and women and wards are exempted from the risk of the penal wager, still the Praetor requires them to take the oath that they are not proceeding vexatiously.
§ 173. But apart from any denial, more than simple damages are involved in various actions: as in an action of manifest theft for a fourfold penalty, for theft not manifest for a twofold one, for stolen goods being discovered or introduced (concepti et oblati) a threefold penalty: for in these and some other cases the action is for something more than mere damages, whether the plaintiff denies or confesses the claim.
§ 174. Vexatious litigation (calumnia) on the part of the plaintiff is also checked sometimes by the judicium calumniae, sometimes by the Contrary action. sometimes by oath, and sometimes by restipulation.
§ 175. The action of reckless litigation (calumnia) lies against the plaintiff in respect of all actions and is for the tenth part of the value of what he has claimed by action, but in the case of an asserter of liberty it is for a third part.
§ 176. But it is at the option of the defendant whether he will bring the judicium calumniae or will exact an oath from the plaintiff that he is not bringing the action vexatiously.
§ 177. The Contrary action only lies in certain cases, for instance, against the plaintiff in an action of outrage (injuriarum), and in an action against a widow who having been put into possession of property on account of her conceived but unborn child (ventris nomine) has fraudulently transferred it to some one else, or an action for refusing to admit a person [judgment creditor, damni infecti nomine, etc. Digest 42, 4] put into possession (missio in possessionem) by order of the praetor. In the action of outrage it lies for the tenth of what has been claimed, in the two latter actions for the fifth.
§ 178. Of these deterrent measures the Contrary action is the more severe. Plaintiff is condemned by the action of vexatious litigation (judicium calumniae) to forfeit the tenth of the value, unless he knows he has no right of action, and has sued to harass his adversary, in reliance on the error or iniquity of the judex, rather than on the justice of his cause; since vexatious litigation, like the crime of theft, consists in intention. But in the Contrary action the plaintiff is condemned in any case if he loses the previous action, even though he had some grounds for believing in the goodness of his cause.
§ 179. But it is clear that wherever the contrary action (contrarium judicium) lies, the action for vexatious litigation (calumniae judicium) also lies, though one is only allowed to make use of one or other of these actions; on this principle if an oath that the litigation is not vexatious has been exacted, just as the calumniae judicium is not granted, so also the contrarium judicium ought not to be allowed.
§ 180. The penalty of the restipulatio also is commonly required in certain cases; and just as in the contrary action the plaintiff is condemned under all circumstances where he loses his cause whether he knew that he had no proper cause of action or did not, even so he forfeits the penalty of the restipulatio in any case if he could not succeed in the action.
§ 181. But when a person suffers the penalty of the restipulation, neither the action for vexatious litigation can be brought against him, nor can he be bound by the religious form of oath; and that in this case the contrary action has no place is obvious.
§ 182. In some actions condemnation involves infamy, as in the actions of theft, rapine (vi bonorum raptorum), outrage (injuriarum), partnership, fiduciary agreement (fiduciae), guardianship (tutelae), mandate, deposit. In actions for theft, rapine, and outrage, it is not only infamous to be condemned, but also to compromise, according to the terms of the praetor’s edict; and rightly so since obligation based on delict differs widely from an obligation based on contract. But although there is no express statement that a person is to be infamous in any part of the edict, a person is said to be infamous who is prohibited from appearing in a court of law on behalf of another, from appointing a cognitor or procurator, and from himself serving as cognitor or procurator.
§ 183. Finally, it is to be noticed that a party intending to sue must serve a summons on his opponent to appear before the magistrate; and if the summons is disregarded, the party summoned forfeits a penal sum according to the provisions of the praetor’s edict. Some persons, however, cannot be summoned without the praetor’s leave, such as parents, patrons, patronesses, and the children of a patron or patroness; and any one infringing this rule is liable to a penalty.
§ 184. Upon an appearance before the magistrate, if the proceedings are not terminated on the same day, the defendant must give security (vadimonium) for an adjourned appearance on a future day.
§ 185. The security is in some cases of a simple kind that is without sureties, in some with sureties, in some cases again it is accompanied by oath, while in some contains a reference to recuperators, so that on default of appearance the defendant may be immediately condemned by the recuperators in the penal sum of the security; all which matters are more particularly explained in the praetor’s edict.
§ 186. In an action on a judgment debt (judicati), or for money paid by a sponsor (depensi), the sum of the security is equal to the sum in question. In other cases it is the amount which the plaintiff swears that he is not vexatiously demanding as necessary to his security, provided that it is not more than half the sum in dispute, nor exceeds a hundred thousand sesterces. If, for instance, the sum in dispute is a hundred thousand sesterces, and the action is not brought to recover a judgment debt or money paid by a sponsor, the penal sum of the security conditioned for reappearance may not exceed fifty thousand sesterces.
§ 187. Those persons who cannot be summoned to appear without leave of the praetor cannot be compelled to give security for the adjourned appearance without similar permission.
§ 171. From the duplication of damages against a defendant who denied his delinquency under the lex Aquilia, 3 § 216, and against a heres charged with a legacy in the form of condemnation, § 9; and from the terms, dare damnas esto = dare judicatus esto, employed both in the lex Aquilia, 3 § 210, comm., and in bequest per damnationem, 2 § 201, it may be inferred with much probability that both the author of unlawful damage and the heir charged with a legacy by words of condemnation were subject, in the older period of the law, to the same proceedings as the judgment debtor (judicatus); that is, in early times were suable by Manus injectio, § 25, and in later times were bound to give satisdatio judicatum solvi, § 102. Cf. Roby, 2. p. 292, and the writers there cited.
Double damages, as a penalty of misrepresentation, were perhaps also an incident of Nexum. Cum ex XII Tabulis satis esset ea praestari quae essent lingua nuncupata, quae qui infitiatus esset dupli poenam subiret, a jureconsultis etiam reticentiae poena est constituta, Cic. de Off. 3, 65. ‘While the Twelve Tables were satisfied with requiring compensation for faults against which a mancipator had expressly warranted, and with punishing a false warranty by double damages, the jurists imposed a similar penalty on reticence.’
In Condictio and Constitutum the sponsio was optional (permittitur), § 171; cf. § 13: in Interdicts it was compulsory, § 141. Bethmann-Hollweg, § 96; Lenel, § 95, 2.
§ 175. A charge of calumny implies guilty knowledge or unlawful intention (dolus), the Contrary action implies unlawful ignorance, that is, recklessness or want of consideration (culpa, temeritas).
§ 176 In three personal actions each party was considered as both plaintiff and defendant and had to take both the oath of the plaintiff and the oath of the defendant. Qui familiae erciscundae et communi dividundo et finium regundorum agunt, et actores sunt et rei et ideo jurare debent non calumniae causa litem intendere et non calumniae causa ad infitias ire, Dig. 10, 2, 44, 4. ‘In partition of inheritance, dissolution of joint ownership, and determination of boundaries, both parties are equally plaintiff and defendant, and therefore must swear to the good faith of both the suit and the defence.’
In the time of Justinian the action of calumny, the Contrary action, sponsio and restipulation had become obsolete, and in their place the losing party was condemned in costs, and the oath received development, being always administered to both parties and their advocates, Inst. 4, 16, 1. ‘Instead of the old checks the oath of the parties and their counsel has been introduced, and the condemnation of the unsuccessful litigant in the costs of his adversary,’ Cod. 2, 58. Payment of costs by the loser of the cause was introduced by a law of Zeno, a. d. 486.
§ 184. Vadimonium must be distinguished from the security judicatum solvi. It only referred to reappearance of the defendant in jure, not to appearance before the judex, like the later cautio judicio sisti, and was required whenever there was an adjournment, whereas security judicatum solvi secured satisfaction of the judgment and was only required from the defendant in real actions and in certain exceptional personal actions, § 102, Cf. Keller, § 47.
In procedure by cognitio extraordinaria, the in jus vocatio, summons of the defendant by the plaintiff, was superseded by summons of the defendant by the magistrate through his lictor (evocari a praetore). Obedience to this summons was compelled by a fine of which we have the formula in Gellius, 11, 1. ‘As M. Terentius on citation has neither answered nor been excused, I fine him in a single sheep.’ If the defendant continued contumacious he was summoned to appear by three proclamations (edicta) at intervals of ten days, and finally an edictum peremptorium was issued in which the magistrate threatened to hear and decide the case in his absence, in default of his appearance, which was done, if he continued disobedient, Dig. 5, 1, 68, &c.
Procedure before a judex was properly called actio, before the praetor, persecutio, Dig. 50, 16, 178, 2. ‘Persecutio is the proper name for extraordinary procedure, as in trusts and other claims which are not triable by an ordinary judex.’
The Libellary procedure which existed in the time of Justinian, having superseded the Formulary procedure, was essentially the same as cognitio extraordinaria. Instead of the summons before the praetor (in jus vocatio) and notice of the action which the plaintiff meant to bring (editio actionis) with which the Formulary procedure commenced, Libellary procedure began with libellus conventionis (at an earlier time with what is called litis denuntiatio, instituted by Marcus Aurelius) and writ of summons. The libellus conventionis was a writing addressed to the court, signed by the plaintiff, stating his cause of action, and binding himself to proceed to Litis Contestatio within two months at latest, or pay twice the costs up to thirty-six aurei, to prosecute the suit to judgment, and pay the costs in the event of losing the cause: it was a form of suing out a writ or summons. Thereupon followed an interlocutor of the court, on its finding a valid cause of action disclosed in the libellus, and this formal document something like an English writ was addressed to the defendant and served on him, not by the plaintiff but by an officer of the court (executor) along with the libellus. The defendant then paid a fee (sportula) to executor proportioned to the amount of the claim; delivered his answer or counter-declaration (libellus contradictionis, responsionis) signed by himself and acknowledging the date of the reception of the libellus; and either gave cautio judicio sisti, security for his appearance in the action for the definitive appointment of the trial (judicio ordinando) and for his continuance to the close of the trial (cautio de re defendenda), or was liable to incarceration. As we have already seen, the action was no longer tried by a judex privatus but by an imperial official. Cf. Muirhead, § 77; Sohm, pp. 315, 316.
Gaius has given us no information concerning Appeal, and very little information has come down to us from other sources as to the origin and development of this kind of jurisdiction under the Principate. (See on this subject Historical Introduction.) Under the republic we hear of no right of Appeal in civil suits: it appears however with the principate, and indeed with the first princeps: and may have been derived from the tribunicia potestas. The jurisdiction may have been only exercised at first in respect of cases belonging to the cognitio extraordinaria of the magistrate, and so not for some time have been applicable to the decisions of private judices. By its extension to these the judex lost the independent position which he held in the time of the republic and was brought under the control of the supreme executive power. The following series of Appeals in civil suits seems to have been instituted: From the Judex to the Praetor who appointed him: from the Praetor to the Praefectus urbi: from the Praefectus urbi to Caesar. In the provinces a Vir consularis, appointed for the purpose, took the place of Praefectus urbi, Suetonius, Augustus, 33.
For the constitution of the courts in the periods of Legis actio, Formula, Libellus, the student should consult Bethmann-Hollweg’s Romischer Civilprozess.
[The words embodied in the text are distinguished from the conjectural readings by italics]
Some conjectural readings, principally by Krueger and Studemund and by Huschke, too uncertain for admission into the text, but followed more or less closely in the translation, are here appended.
1 § 43. Neque plures quam D servos habentis mentio in ea lege habetur.
1 § 56. Itaque liberos suos in potestate habent cives Romani, si, &c., &c.
1 § 73. Cujus aetatis filius sit, nisi forte eorum aliquis, qui e lege Aelia Sentia matrimonium se contrahere putarint, erroris causam probare velit; ab hoc enim, &c., &c. . . . quod ad erroris quoque causam probandam attinet, anniculus filius esse debeat, sed non semper videri debet generale jus inductum cum imperator epistulam ad quendam dedit.
1 § 78. Quod autem diximus inter civem Romanam peregrinumque contracto matrimonio eum qui nascitur peregrinum esse, lege Minicia cavetur, qua lege effectum est, ut si matrimonium inter cives Romanas peregrinosque non interveniente conubio contrahatur eum qui nascitur peregrini parentis condicionem sequatur.
1 § 79. Adeo autem hoc ita est, ut ex cive Romano et Latina qui nascitur Latinus nascatur, quamquam ad eos, qui hodie Latini nominantur, lex Minicia non pertinet; nam comprehenduntur quidem peregrinorum appellatione in ea lege non, &c., &c.
1 § 115 b. Si tamen mulier fiduciae causa, &c, &c. . . .
1 § 118. nam feminae a coemptionatoribus eodem modo possunt mancipari quo liberi a parente mancipantur; adeo quidem, ut quamvis ea sola apud coemptionatorem filiae loco sit, quae ei nupta sit, tamen nihilo minus, &c.
1 § 122. Namque veluti asses librales crant, et dupundii bilibres, &c., &c.; . . . quamobrem qui dabat olim, &c., &c.
1 § 132. At the end, cf. Epit. 1, 6, 3. Tamen cum tertio mancipatus fuerit filius a patre naturali fiduciario patri, hoc agere debet naturalis pater, ut ei a fiduciario patre remancipetur et a naturali patre manumittatur, ut si filius ille mortuus fuerit, ei in hereditate naturalis pater, non fiduciarius, succedat.
1 § 132 a. Ei, qui liberum caput e causa mancipii manumittit, eadem jura in ejus bonis competere, quae patrono in bonis liberti competunt; for the remainder of the § cf. Epit. 1, 6 § 3 Feminae vel nepotes masculi ex filio una emancipatione de patris vel avi exeunt potestate et sui juris efficiuntur. Et hi ipsi quamlibet una mancipatione de patris vel avi potestate exeant, nisi a patre fiduciario remancipati fuerint et a naturali patre manumissi, succedere eis naturalis pater non potest, nisi fiduciarius, a quo manumissi sunt; nam si remancipatum eum sibi naturalis pater vel avus manumiserit, ipse ei in hereditate succedit.’
1 § 134. Praeterea parentes, liberis in adoptionem datis, in potestate eos habere desinunt: et in filio quidem, si in adoptionem datur, tres mancipationes et duae, &c.
1 § 135 a. Eadem scilicet dicemus de eo qui ex nepote semel mancipato necdum manumisso conceptus fuerit. Nam ut supra, &c., &c.
1 § 136. Praeterea mulieres quae in manum conveniunt, in patris potestate esse desinunt, sed in confarreatis nuptiis de flaminica Diali senatusconsulto ex relatione Maximi, &c. And six lines further; Coemptione autem facta mulieres omni modo potestate parentis liberantur.
1 § 137. Sicut igitur filiae familias una mancipatione de potestate patris exeunt, ita eae quae in manu sunt una mancipatione desinunt in manu esse.
1 § 137 a. Inter eam vero quae cum extraneo, et eam quae cum viro suo coemptionem fecerit, hoc interest, quod illa quidem cogere coemptionatorem potest, ut se remancipet, cui ipsa velit, haec autem virum suum nihilo magis, &c., &c.
2 § 14. After rusticorum; cf. Epit. 2, 1, 3; Dig. 1, 8, 1, 1; Inst. 2, 2, 3. Praediorum urbanorum jura sunt velut jus altius tollendi aedes, et officiendi luminibus vicini aedium, aut non extollendi, ne luminibus vicini officiatur, item fluminum et stilicidiorum jus, id est ut vicinus flumen vel stillicidium in aream vel in aedes suas recipiat; item cloacae immittendae et luminum immittendorum. Praediorum rusticorum jura sunt velut via, iter, actus, item pecoris ad aquam adpulsus, item jus aquae ducendae. Haec jura tam rusticorum quam urbanorum praediorum servitutes vocantur.
2 § 14 a. Est etiam alia rerum divisio: nam aut mancipi sunt aut nec mancipi. Mancipi sunt velut fundus in Italico solo, item aedes in Italico solo item servi et ea animalia quae collo dorsove domari solent, velut boves equi muli asini; item servitutes praediorum rusticorum. Nam servitutes praediorum urbanorum nec mancipi sunt. (Cf. Dig. 1, 8, 1, 1. Inst. 2, 2, 3.)
2 § 15. sed quod diximus ea animalia quae domari solent, mancipi esse, quomodo intellegendum sit, quaeritur, quia non statim ut nata sunt, domantur. Et nostrae quidem scholae auctores statim ut nata sunt, &c.
2 § 66. etiam si occupando ideo res adquisierimus.
2 § 67. piscem ceperimus, quidquid ita captum fuerit, id statim nostrum fit, et eo usque, &c., &c.
2 § 82. accipientis sine tutoris auctoritate . . . id est eos petere suos ex jure Quiritium esse; mulier vero minime hoc modo repetere potest, sed ita: dari sibi oportere. Unde de pupillo quidem quaeritur, an si nummi, quos mutuos dedit, ab eo qui accepit, consumpti sunt, aliqua actione eos persequi possit, quoniam obligationem etiam sine tutoris auctoritate adquirere sibi potest.
2 § 111. quos lex Papia plus quam dimidias partes hereditatis legatorumque capere vetat, ex militis testamento solidum capiunt. Cf. Inst. 2, 12. Ulp. 20, 10. Epit. 2, 2, 1, &c., &c.
2 § 112. Sed ex auctoritate, &c., &c.
2 § 129. After pronepotes; nominatim exheredari jubet, feminini vero inter ceteros; qui nisi fuerint ita exheredati, promittit eis contra tabulas bonorum possessionem.
2 § 149 a. After non sit; cum si agnati petant hereditatem exceptione doli mali ex constitutione imperatoris Antonini removeri possint.
2 § 150. Sane lege Julia scriptis non aufertur hereditas, si bonorum possessores ex edicto constituti sint; nam ita demum ea lege bona caduca fiunt et ad populum deferri jubentur si defuncto nemo heres vel bonorum possessor existat.
2 § 151 a. After hereditatem; per exceptionem doli mali repelletur, si vero nemo ab intestato bonorum possessionem petierit, fiscus scripti heredi quasi indigno auferet hereditatem, ne ullo modo ad eum quem testator heredem habere noluit perveniat hereditas.
2 § 235. At the end, multas similes species circumspicere possumus.
2 § 237. ideoque etsi secundum mentem testatoris is qui tutor datur, poenae nomine, &c., or ideoque quando etiam poenae nomine tutor datus fuerit, &c., &c.
3 § 43. itaque sive auctor ad testamentum faciendum factus erat, aut sibi imputare debebat, quod heres ab ea relictus non erat, aut ipsum ex testamento, si heres ab ea factus erat, sequebatur hereditas: . . . nec enim ullus olim ab intestato heres vel bonorum possessor erat, qui possit patronum a bonis libertae invitum repellere.
3 § 44. ergo ex bonis ejus quae centum milia sestertiorum plurisve reliquerit patrimonium, si testamentum fecerit, dimidia pars debeatur, si vero intestata liberta decessit tota hereditas ad patronum pertinet. But no suitable rendering has been suggested which agrees with the words of the MS.
3 § 46. Olim quidem eo jure (utebantur), quod legexiitabularum patrono datum est, praetor autem non nisi virilis sexus patronorum liberos vocat; filia vero ut contra tabulas testamenti, &c.
3 § 69. patronus heredes instituerit, ex isdem partibus bona Latini, si patri heredes existant, ad eos pertinere, &c., &c.
3 § 80. veluti si peregrinus sit bonorum emptor.
3 § 81. Item quae debita sunt ei cujus fuerunt bona, aut ipse, &c. . . . debentur, et ideo de omnibus rebus utilibus actionibus et experiuntur et conveniuntur, quas in sequenti, &c.
3 § 95. Si quis interroganti Dari Spondes? respondeat Promitto vel Dabo, an recte obligetur; aut si quis interroganti Promittis? respondeat Ὁμολογω̂ an recte obligetur.
3 § 95 a. Cf. Epit. 2, 9, 3. Sunt et aliae obligationes quae nulla praecedente interrogatione contrahi possunt.
3 § 103 a. Alia causa est, si ita stipulatus sim mihi aut Titio Dari Spondes? quo casu constat mihi solidum deberi et me solum ex ea stipulatione agere posse, quamquam etiam Titio solvendo liberaris.
3 § 117. quia enim nobis ut post mortem nostram detur stipulando, &c., &c.
4 § 1. Superest ut de actionibus loquamur. Et si quaeramus quot genera, &c.
4 § 15. See Huschke’s attempted reconstruction of what seems to be an account of the actio sacramenti in personam.
4 § 17 a. A leaf of the MS. is missing.
4 § 40. pars formulae quae ideo inseritur ut, &c., &c.
4 § 61. Inst. 4, 6, 30. In bonae fidei autem judiciis libera potestas permitti videtur judici ex bono et aequo aestimandi quantum actori restitui debeat quo et illud continetur, &c.
4 § 66. Krueger and Studemund suggest the following—itaque si frumentum aut vinum petat bonorum emptor et invicem defraudatoris nomine pecuniam is debeat, quanto amplius ea pecunia id frumentum aut vinum erit, in condemnatione ponitur; si vero, &c., &c.
4 § 111. aliquando tamen et perpetuo eas dat, velut quibus imitatur, &c., &c.
4 § 114. absolutoria esse. diversae scholae auctoribus de strictis judiciis contra placuisse.
4 § 131. Et quae ante tempus obligationis in judicium deducuntur, ea neque in condemnationem veniunt neque rursus de iis agere potest.
4 § 131 a. tradi, vel tradita ea de evictione nobis caveri, iterum ex empto agere possimus, alioquin si praescribere (obliti) sumus, totius, &c.
4 § 133. per unius rei petitionem universae hereditati praejudicium fieri.
4 § 134. et siquidem ex contractu servorum agatur, intentione formulae determinatum [Polenaar, designatum] est, cui dari oporteat.
4 § 165. nisi ei res exhibeatur aut restituatur, quanti ea res erit, adversarius ei condemnetur.
4 § 166. et qui superaverit fructus licitando. . . .
de eo inter se certant, utri fructuum perceptio interim committenda est. Postea alter, &c.
Ad. Schmidt would read at the end—vel si unus tantum sponsione provocavit alterum, una inter eos sponsio.
4 § 166 a. Deinde ab utroque editis formulis sponsionum et restipulationum judex, &c., &c.
4 § 170. Itaque etsi alias potuerit interdicto Uti Possidetis vincere, tamen si cetera ex interdicto facere noluerit, per interdictum secundarium possessio in adversarium transfertur.
4 § 171. Nunc admonendi sumus ne facile homines ad litigandum procedant, temeritatem tam agentium quam eorum cum quibus agitur coerceri modo pecuniaria poena modo jurisjurandi religione modo metu infamiae.
4 § 172. simplo tenus obligati sint.
Oxford: Printed at the Clarendon Press, by Horace Hart, M.A.