Praetorian remedies

As a bearer of supreme power, or imperium, the praetor could grant some remedies other than actions, with the aim of administering justice. Four of these remedies were the praetorian stipulations, the interdicts, the missiones in possessionem, and the restitutiones in integrum.

a Praetorian stipulations were verbal promises required by the praetor of one or both of the litigants to ensure the successful development of the proceedings or to protect the interest of the parties. A promise in the form of a stipulation provided the promisee a legal remedy (a security) that did not exist in civil law. A stipulation, for instance, could insure against potential damage to a house in dangerous condition (cautio damni infecti) or against certain abuses by the usufructuary (cautio usu­fructuaria). It could also ensure the restitution of the dowry in case of divorce (cautio rei uxoriae).

b Interdicts were one of the oldest and most important creations of praetorian law. They were administrative praetorian orders, made at the request of a claimant imposing a certain form of behavior on the addressee: to do something or to abstain from doing something. Many interdicts were provisory in nature, with the purpose of protecting concrete existing situations and rights. Interdicts were numerous and of great variety. A large appendix of the praetorian Edict included all of them. They protected all kinds of public and private interests that the praetor thought were in need of protection. There were interdicts to protect the use of public roads, navigation on public rivers, the good condition of sewers, and public places against damage from construction - but also private possessions, servitudes, inheritances, and more. The most important interdicts in practice were those dealing with possession. Justinian’s law removed the distinction between actions and interdicts.

c Missiones in possessionem were decrees of the praetor authorizing the claimant to take over the property of his adversary in whole or in part. Missiones were provisional in nature, but in the long term they might have had the effect of destroying rights in civil law. The purposes of these coercive measures varied. For instance, the praetor decreed the missio when the defendant was absent in court, or against an insolvent debtor, or to protect the rights of an unborn heir (ventris nomine) or the rights of a legatee against the heir who refused to give a promise for the payment of a legacy. The legal consequences also varied greatly: such decrees

might result in a right of the claimant to sell the whole property of the adversary, to sell only a portion, or just to possess it.

d The last coercive means was the restitutio in integrum. It was, in some respects, the most important of all praetorian remedies since it extinguished civil law rights. The purpose of this extraordinary coercive means, estab­lished for reasons of equity, was the restoration or reinstatement of a former legal position to the claimant against a wrongdoer or against the immediate beneficiary of a transaction. For example, after an investiga­tion by the praetor at the request of a claimant, the praetor could declare nonexistent and ineffective a transaction that was valid according to civil law but that had prejudiced the claimant’s legal position. This could occur, for instance, to protect against transactions concluded by minors (under twenty-five years old), transactions concluded under duress, some fraudulent transactions, and others.

Litis contestatio

The joinder of the issue (litis contestatio) was the final step of the proceedings at the praetor’s court. It was the point of no return in a lawsuit. Once the judge was appointed and the formula was drawn up, the parties would strike an agreement in the presence of the praetor, in which they accepted the legal remedies as well as the final judgment debt (sententia).

Apud iudicem

The proceedings before the judge were oral and public. The parties were present but did not formally participate in the proceedings. If the plaintiff was absent (that is, if he did not appear after a long waiting period), the defendant was absolved by the judge. If the defendant was away without an excuse, pro­ceedings continued, giving the plaintiff the opportunity to prove his case. The proceedings started with the advocates’ speeches, followed by the taking of evidence. After some discussions with the judge, he pronounced the final

Civil litigation 123 judgment. Hearings could be repeated until the judge was prepared to make his final decision.

Each party had to assure the attendance of witnesses that the judge should hear. Neither the parties nor persons closely connected to the parties could act as witnesses. Slaves could be witnesses in cases in which evidence did not exist. (Usually slaves were examined by torture.) There were no strict rules of evidence. A judge was bound only by the instructions given in the formula, not by a concrete piece of evidence or by previous decisions (precedents). Nor was the judge bound by the council of legal experts who advised him during the proceedings. The final judgment, given orally and publicly, in the presence of the parties, was most likely written down. According to the formula, the judge had to either condemn or absolve; conditional judgment was not allowed. If the judge concluded that he was not able to make a decision according to justice because of the ambiguity of the case, he could make an oath declaring that he was not yet clear about the case (res sibi non liquere). If that happened, the parties would nominate another judge or try to obtain more evidence (Ulpian, D. 4.8.13.4). There was no appeal, although during the Principate an appeal directed to the emperor against judicial decisions was finally recognized.