Classifications of actions

For the Romans, the primary distinction of formulae, and therefore of actions, was that of actions in rem and actions in personam. In actions in rem, the plaintiff alleged a special relation with the concrete thing he claimed.

claim precisely, and therefore in the formula of personal actions, the name of the defendant had to be inserted in the intentio. A typical example was the action for a payment (condictio: see formula above).

A second important classification of actions was the division into civil actions and praetorian actions. In civil actions, the praetor granted an action whose formula already existed in civil law (rei vindicatio, condictio). Praetorian actions, in contrast, were partial or complete creations of the magistrates; therefore, they were outside the realm of civil law. There were three kinds of formulae in praetorian actions.

a Formulae with a fiction were formulae the praetor adapted by the insertion of a “presumed understanding” or fiction to expand the application of the civil formulae to new situations. For instance, when the praetor wanted to protect a person who was not the civil heir, he could insert the fiction, “as if he were civil heir.” The praetor could also apply civil law to foreigners under the fiction, “as if he were a Roman citizen.”

b Formulae in which the name inserted in the condemnation was different from the name inserted in the intentio occurred, for instance, in Rutilian action, created by the praetor Publius Rutilius Rufus around 118 bce.

c Formulae called in factum conceptae in which there was no similarity with the formula of any action existing in civil law. The praetor could create a new formula condemning the defendant if the plaintiff proved certain factual elements described in the intentio. An example was the action for fraud (actio de dolo), introduced by the praetor Aquilius Galus in 66 bce. Actions in factum abounded and were applied in a variety of legal relations.

Finally, an important distinction existed between actions in good faith (actiones bonae fidei) and actions of strict law (actiones stricti iuris). Actions in good faith were those personal actions in whose intentio was added the expression ex fide bona (based on good faith). In those cases, the judge had the power to determine the final judgment on principles of good faith by estimating the condemnation, incorporating the possibility of offsets, taking into consideration some formless pacts made by the parties, considering exceptions after the joinder of the issue, and so on. Actions in good faith included, among other things, all actions derived from consensual or real contracts. All actions that were not established according to good faith were regarded as based on strict law (actiones stricti iuris). This name seems to have come from Justinian (Inst. 4.6.28). Closely related to actions in good faith were actions in bonum et aequum conceptae (Gaius, D. 4.5.8), in which

Civil litigation 121 the praetor authorized the judge to establish the judgment debt in the con­demnation of the formula at his discretion. The nature of the claim was related to a behavior of the defendant that caused some harm to the plaintiff. Unlike the actions in good faith, these actions did not have contractual character. An example was the action against wrongful acts (actio iniuriarum).