LEGIS ACTIONES GENERALLY

§ 76 Gaius, Institutionum commentarius IV. 11

The actions which our forefathers used were called legis actiones either from the fact that they were created by statutes - inasmuch as at that time the edicts of the praetor, whereby a large number ofactions were introduced: were not yet in use - or from the fact that they were adapted to the words of the statutes themselves and so were as inflexibly observed as statutes.

Beseler considers [inasmuch as - yet in use] and [and so were - as the statutes] not classical, declaring the latter passage superfluous, the words ‘action will be observed’ nonsense, and the whole bad Latin? Lend com­pletely disposes of Beseier’s objections, yet Albertario has since declared that the first reason given by Gaius and the clause [and so were-as statutes] were glosses.¹

Pomponios, Libro singulars enchiridii (D. 1.2.2.6-7)

Then from these same statutes (XII Tables), at about the same time, actions were devised by which men might litigate, and lest these actions be indiscrimi­nately brought by the people, they were required to be in certain and solemn form; and this part of the law is called legis act tones, that is, statutory actions.... (7) Afterwards. when Appius Claudius had propounded and fixed the form of these actions, Gnaeus Flavius, his secretary, the son of a freedman, stole the book and delivered it over to the people.... This book, which con­tains the actions, is called ius civile Fla via num, as that other, the ius civile Papirianum; nor did Gnaeus Flavius add anything of his own to the book.

In the consideration of legis actiones generally, the first problem is, what does legis actio mean? Gaius offers two suggestions why these processes were so termed: (1) because they were provided by statutes, and (2) because they employed specific forms in the words of the statutes. Weiss has attempted to show that all legis actiones save for sacramentum - which belongs to an earlier historical layer than the rest - were provided by statute, hence the name; the error was that of Gaius in offering another explanation as equally plausible. ’ Magdelain, indeed, has argued that Gaius' second reason is but a corollary of the first, and that legis actio derives from statute, and hence cannot antedate the Twelve Tables? A lex was needed to afford a cause of action (actio ex lege) and to provide the pro­cedure to be followed in pursuing it (legis actio). Most scholars, however, ^{[490] [491] [492] [493] have observed that legis actiones derive in part from customary practices, and in part from statutes? Frezza, for example, stated that age-old practices (mores) were the prime sources of legis actiones, which might be modified or modernized by legislation; hence, the phrase legis actio was either a later nomenclature, or lex meant something like ‘bond’.* Arangio-Ruiz felt that the processes were originally termed actiones, but after the Twelve Tables and other legislation had affected their development, they were called legis actiones to distinguish them from the older sort? Gioffredi also placed the origin of many legis actiones in customary ways, procedures which were stabilized by the Twelve Tables and derived their name from this circumstance? Even though the legis actiones Sacramento and manus iniectionem may have been earlier than theTwelveTables, Kaser maintains that legis actiones derived this denomination from the fact that they were traced back to statutes, which likewise provided the forms?}

There are a few who would emphasize the second meaning posited by Gaius.

It is recognized that ‘actio* in the Roman law does not exactly correspond to our ‘action’. Wenger has said that actio is an act that is bound to certain forms according to the ius civile,¹² not merely the act seeking justice but also the amicable juristic act, such as mancipatio, in iure cessio?¹ Actio emphasized the personal bond much more than present-day ‘action’. The personal element in the legis actio is the formal act and recitation of fixed words by the parties. Thus actio, in the formal sense, is the act which founds the process, an act of the parties, termed legis actio because the formal requirements were dictated by established norms?* Broggini, who departs radically from the Wlassak-Wenger conception of the

5. So, early, Berlolini, Processo 1 99—104; Huveiin, Droit remain 1 130-31, who would translate ‘lex’ in G. 4.11 as ‘custom’; and formerly Weiss, Stwhen 9, 13 ff.

6. Frezza, Studi Ferrara I 273, 279 ff., and Studi Ferrin! (Pavia) 305, and Arch. dr. privt 16 (1953) 54, 75 f.

7. Arangio-Ruiz, Istituxioni 107.

8. Gioffredi, SDH! 13/14 (1946/47) 60 ff.

9. Kaser, Alt Mm. Ius 72 f.; Zmlprozessredit 24 f,

10. Karlowa. Qvilprozess 1-5; cf. Mitteis, Rom. Privatrecht 34 n.13, with further reff.

11. Kaser, Altrdm. Ius 72; De Zulucta, Institutes 11 230; L6vy-Bruhl. Reeherches 10 f.

12. Wenger, Institutes 12 a. 14.

13. For technical terms, remember Berger, ED, s.w.

14. Wlassak, r.r. actio. RE 1 (1894) 303-06; Wenger, Institutes 123 f.

nature of Roman process, nevertheless identifies legis actio with the formal, even extrajudicial act of the parties; Schmidlin insists that the original, basic meaning of legis actio derives from certis verbis agere (to perform a formal legal act), and not from lege (publica) agere (to sue in accord with statute).“

The term legis actio can, in the second place, be applied to the whole procedure of which the formal party act was the vital part.

Finally, legis actio has the connotation, in a substantive sense, of the cause or claim which led to the formal party act. The provision of the Twelve Tables which granted an action for damages for trees unlawfully cut down •is an illustration which Gaiusprovides.’Unanswer toaquery.thepontiffsres- ponded that the complainant had lost his case because he had not employed the very words set forth in the statute, which covered his cause of action. There must, however, have been other causes of action, dependent upon custom or based upon the interpretation of statutes, for which the formal party act had to be devised; this, most agree, was one of the primary tasks of the college of pontiffs.’· In the course of time, as was noted earlier, the forms which the pontiffs had developed were made known by the action of Gnaeus Flavius, and eventually the technique by which forms were devised to accommodate to new conditions was expounded by Tiberius Corunca-

15.

16. Sec Wlassak. Prozessgesetxe I 267-72; further reff. in Kaser, Altrbm. lus 220 n.8.

17. Cf XII Tab, 8.11.

18. Lend. SZ 30 (1909) 340-43; Paoli. RIDA 5 (1950) 281. 316 ff. Contra, Magddain. Actions 40 ff.

nius.¹⁹ That the forms continued to increase in number is evidenced by the compilation of additional actions by Sextus Aelius Paetus, circa 200 B.C. It has even been suggested that G. 4.11 reflects an attempt to introduce a new form for the formal party act» for the time being unsuccessfully.¹⁰ That it was unsuccessful introduces the next problem with respect to legis actio: what was the role of the magistrate?

An earlier school of thought held that the magistrate in the legis actio procedure was only a part of the judicial machinery to see that the proper legis actio was used and in the correct fashion, occupying merely a formal, passive role,²¹ In such circumstances the praetor would play no role in the development of new causes of action or of the forms appurtenant thereto. At least, no praetorian actions or affirmative defenses (exceptiones) were made available by the judicial magistrate in the time of the legis actiones.¹¹ Wlassak, however, sought to show that the praetor played a most active role in the legis actio proceeding.” He apparently had the right of denying an action to the plaintiff (denegatio actionis), and he could intervene to assign possession or to authenticate a party agreement made in his presence.²⁴ Recent writers emphasize the role of the magistrate in the designation of the index, when bipartite process became current?¹ Consequently, the praetor made the determination whether this or that cause of action would be adequate. Operating with these powerful controls over the legis actio procedure, there would be no basic change in his position involved when formulary procedure was introduced. De Zulueta, representing a middle point of view, was unwilling to be as positive with respect to the praetor’s position, and attributed many of the developments indicated to the period immediately preceding the enactment of the lex Aebutia, a crucial point in the decline of the legis actio process and the rise of the formulary proce­dure?*

(9.

20. Wlassak^nr. Wen 76 (1926) 159-62.

21. Representative of this view, Girard, Melanges I 74 fl., and Histoire_t 68-72, summarized by Jolowicz, Introduction 228 f. The magistrate was certainly the praetor from 366 B.C. on; De Martino, Gtarisdizuwie 3-52, has re-argued an old view that the pontiffs exercised jurisdiction over suits in the early Republic, but this position has not been accepted, Kaser, Aitrdm. lus 348 ff., with further reff. to proponents and opponents of the view, 349 n.13.

22. G. 4.11 and 4.108; see Girard. Melanges I 148-51.

23. Wlasaak, 'Dcr Gerichtsmagistrat im gesetzlichen Spruchverfahren’, SZ25( 1904) 81-188, and 28 (1907) 1-114, particularly SZ 28 (1907) 97 fl. Accord Lcnel, ‘Dec Praetor in der legis actio’, SZ 30(1909) 329-54.

24. Further on the significance of the terms ‘do, dico, addico’ in Varro, De ling. lot. 6.6, see Wenger, Praetor 50 ff.; DfiD, SZ 57 (1937) 76, 80 fl.; Kaser, Altrfyn. lus 108 n.21.

25. Eg., Kaser, Zivilprozessrecht 43 nn.25 f.

26. De Zulueta, Institutes II 231,

The final problem which may be raised concerns the extent of the opera­tion of legis actiones; were these procedures available to any but Roman citizens? Girard believed that foreigners who had been granted the right to engage in commercial transactions (commercium) could use legis actio procedures.¹¹ Recently Frezza has argued that even prior to the creation of a praetor for foreigners (praetor peregrinus) in 242 B.C., and probably as the result of a treaty entered into with the Carthage in 348 B.C. providing for reciprocity of treatment, the newer legis actiones, per condictionem and perhaps per iudicis arbitrive postulationem, were made available to for­eigners in the enforcement of their commercial relations with Romans.¹* Weiss, along other lines, had contended that Latins, but not all non-citizens, could use those legis actiones which were not based on a statute of the Roman people, e.g., manus iniectio, or Sacramento, with the phrase ‘by the ius Quiritium’ necessarily omitted from their formal pronouncements.” The above scholars are in distinct minority; legis actiones are generally held to have been available to Roman citizens only.”

The remaining matters of general interest with respect to legis actiones, specifically the course of the proceedings from summons to judgment and execution, are omitted from consideration herein?¹ The reason for the presentation of materials on legis actio in this manual was to offer a typical sample of an archaic and pre-classical institution. It was not to delve deeply into the content of the institution, to follow the steps involved in the pursuit of civil litigation.

27. Girard, Histoire 101-04, 206 n,2; cf. also Mommsen, Schriften I 327 n.129.

28. Frezza, RIDA 2 (1949) 259, 265 ff.

29. Weiss, Studien 18-45.

30. Wlassak, ‘Der Ausschluss der Ladner von der romischen Legisactio,’ SZ 28 (1907) 114—29; Mitteis, R&m. Privatreeht 123-25, with further reff. 124 n.45; Ehrhardt, SZ 55 (1935) 36, 76 f.; Paoli. RH 33 (1955) 343-75; Grosso, Storia 266 n.3, setting forth the arguments offered by Frezza and the answers thereto. A summary of views is also given by Kaser, Zivilprozessrecht 45.

31. There is extensive treatment of legis actio procedure in Broggini, Index and in L6vy- Bruhl, Recherche; as well as in the lecture manuals of Luzzatto, Procedura civile romano II: Le 'legisactiones’(1948); Pugliese, llprocess«civileromano, I: Lelegisactiones(l962);Biscssdi, Lezioni sul processo romano. antico e classico (n.d. 21968). The most recent comprehensive survey of civil procedure, with full reff, to earlier studies, is by Kaser, Das romische Zivil- prozessrechs (1966), part 1 on legis actio procedure.