Other forms of praetorian remedies

Besides actions and exceptions, the praetor, by virtue of his imperium, could issue other legal remedies aimed at protecting certain recognised interests. These remedies fell into one of four categories: stipulationes praetoriae, missiones in possessionem, restitutiones in integrum and interdicta.

Stipulationes praetoriae

In certain cases the praetor could order one or both litigants to assume by stipulatio (a verbal solemn promise) the obligation to do or refrain from doing something.

Missiones in possessionem

A missio in possessionem was an order by which the praetor granted authority to the claimant to take temporary possession of his adversary's property (in whole or in a part).^[736] Such an order could be issued for the purpose of ensuring the normal progress of judicial proceedings, or of securing a creditor's claim over his debtor's property, or of inducing a debtor to provide security, if he refused to do so voluntarily.

Restitutiones in integrum

A restitutio in integrum was a special remedy granted by the praetor at the request of a person who had suffered an unjust loss as a result of the strict application of the law and was aimed at reinstating the parties in their former legal position.^[737] In the context of a trial, a restitutio in integrum returned the parties to the legal position which they had prior to the litis contestatio. This remedy was granted by a praetorian decree (decretum) after an examination by the praetor of the circumstances that gave rise to the claimant's request (causa cognita). For example, under the lex Plaetoria de minoribus (192-1 BC), a restitutio in integrum could be granted to a person under twenty-five years of age (minor) who had entered into a transaction under conditions detrimental to his own interests. The remedy reversed the legal effects of such a transaction, despite the fact that the transaction remained valid under the ius civile. The circumstances in which the praetor was prepared to grant a restitutio in integrum were set out in the edictum perpetuum.

Interdicta

The interdicta snqtq summary orders (decreta) by which the praetor prohibited a person from doing or continuing to do something, or ordered him to carry out certain act.^[738] An interdictum was issued at the request of the person or persons concerned, following an examination by the praetor of the circumstances of the case, and was usually based upon a formula included in the praetorian edict.

In general, interdicta were divided into restitutoria, exhibitoria and prohibitoria}⁶⁹ The interdicta restitutoria were aimed at the restoration (restitutas) of a legal situation that had been disrupted by a person's actions. For example, the actual possessor of a property who had been forcibly ejected from it could apply for an interdictum ordering the return of possession to him until any questions as to the rights of the parties concerned had been answered by a court of law. By an interdictum exhibitorium the praetor ordered the defendant to produce (exhibeas) a person (e.g. a child) or a thing (e.g. a testament) held by him in a court of law. However, no obligation was imposed upon the defendant at this stage to return the person or thing to the claimant. By an interdictum prohibitorium a defendant was prohibited from doing something, e.g. from hindering the claimant in the exercise of a property right. For instance, if the value of a house was likely to be substantially diminished by some act of the person in possession of that house, a person claiming a right over the house could request the issuing of an interdictum prohibitorium forbidding such an act.

As was noted above, an interdictum could be issued in order to prevent any damage from being suffered by either of the parties in a suit until their respective claims were decided by a court of law (the interdictum did not in itself determine whose claim was to prevail). In some cases, however, an application for an interdictum resulted in a preliminary lawsuit, as the praetor could refuse granting the claimant's request until he heard the claim of his adversary as well. After an interdictum had been issued, questions might arise as to whether the praetor's order had been duly carried out and this could result in a separate lawsuit. If the person to whom the interdictum was addressed did not comply with it, the legal proceedings that followed could take one of two forms: per sponsionem and per formulam arbitrariam. The per sponsionem procedure was the only one followed in relation to interdicta prohibitoria, whether simplicia or duplicia. With respect to the interdicta restitutoria and exhibitoria, either the per sponsionem or the per formulam arbitrariam procedure could be followed.^[746] Both forms of procedure began with the summoning by the claimant of the person to whom the interdictum had been addressed to appear before the praetor.

Proceedings per sponsionem

When both parties appeared before the praetor, the party on whose initiative the interdictum had been issued called upon his adversary to undertake by sponsio ^[747] that he was going to pay him a sum of money as a penalty (poena) if, in the trial that was to follow, he was condemned by the judge.

The procedure per formulam arbitrariam

In relation to the interdicta restitutoria and exhibitoria the party against whom an interdictum had been issued was entitled, until the completion of the proceedings in iure, to ask for the appointment of an arbitrator {arbiter).'¹⁵ If the defendant lost the case, the arbiter called upon him to return or produce the person or thing under dispute. If the defendant did so, he was absolved.^[748] [749] [750] [751] [752] But if he refused to comply, he was condemned to pay a sum of money equal to the value of the object he had been ordered to return or produce.¹⁷