6.4.1 The Formulary Procedure

As we have observed, during the late Republic the formulary procedure gradually replaced the earlier legis actio procedure.

By the end of this era, the formulary procedure had evolved as the main form of civil procedure in Rome—a development that acquired statutory sanction by Augustus' judicial reform legislation of 17-16 bc (leges luliae iudiciorum publicorum et privatorum).^{^[1284]} In the altered conditions of the late Republic, the formulary procedure permitted the jurisdictional magistrates to introduce novel rights and remedies to accommodate the new socioeconomic relations of an increasingly sophisticated society. For a great span of time after the establishment of the Principate the normal jurisdiction of the republican magistrates was fully maintained and the per formulam procedure remained the customary method for initiating legal action in disputes relating to private law. As explicated previously, the relevant procedure was divided into two phases. In the first place (in iure), the praetor determined the admissibility of the plaintiff’s claim, i.e. whether the plaintiff should be granted an action at law. If the praetor was satisfied that the plaintiff had an arguable case, the appropriate formula was composed that nominated the judge (iudex) to try the case, stated the matter in dispute and prescribed the consequences of the judge’s decision. The trial occurred in the second phase (apud iudicem) where the judge listened to the parties’ pleadings, assessed the evidence and rendered a verdict in accordance with the formula agreed upon in the in iure phase.

The only element that changed in the formulary system during the Principate period was the function of the praetorian edict. As noted previously, in the closing years of the Republic the productive strength of the praetorian edict as a source of law faded and praetorian initiatives became increasingly rare. This trend prevailed during the Principate age and as the praetor’s ability to develop new legal remedies diminished, the changes to the edict were based on measures introduced by other law-making agencies, such as statutes and senatorial resolutions. The creation of law administratively by the praetor finally ended during the reign of Emperor Hadrian when the content of the edict was permanently fixed following its codification by the jurist Julian. Thereafter, any requisite changes to the edict could only be introduced by imperial enactment. Although no longer an independent source of law, the praetorian edict perpetuated its contribution to the administration of private law well after the formulary system had fallen into abeyance in the third century AD.^{^[1285]}

6.4.2

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

6.4.1 The Formulary Procedure

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