Omnis condemnatio pecuniaria

Roman procedure, on the other hand, as we have stressed repeatedly, was dominated by the principle of omnis condemnatio pecuniaria.²⁸⁵ Every judgment had to be for a definite sum of money, and that implied, for instance, that restoration in kind was not enforceable.

This was determined, to a certain extent, by the procedural formula. With regard to actiones stricti iuris containing an intentio certa, the judge was usually asked to determine "quanti ea res est" and to condemn the defendant accordingly.²⁸⁸ "Si paret N^m N^rn A° A° Pamphilum servum dare oportere" is a typical intentio certa, and the judge could only condemn the defendant in the value of the slave Pamphilus or absolve. Thus, at least originally, the yardstick for the determination of the sum for which judgment had to be given was an entirely objective one.²⁸⁴ Whether or not the individual plaintiff had suffered a loss that went beyond the value of the object owed was (at least originally) not important.^{240 [4233] [4234]}

The situation was different in the case of incertum obligations, particularly the bonae fidei iudicia, where the judge had to condemn in "quidquid ob earn N^m N^m A° A° dare facere oportet (ex fide bona)". Here all the individual circumstances of the case had to be taken into account and what the judge was, essentially, instructed to do was to estimate what sum of money it would be equitable for the defendant to give to the plaintiff.²⁹¹ That did, of course, not necessarily coincide with the (objective) value of the object of performance. It could comprise a whole variety of further items; for naturally it was equitable to compensate the plaintiff, as far as possible, for any loss that he had suffered as a result of the defendant's behaviour. This, then, is where both the problem and the notion of "damages" appeared on the scene, but the Roman lawyers were far from conceptualizing this notion or from tying it to rigid definitions.

3.