The Action
The actio iniuriarum had a formula which directed the trial court to assess the defendant's conduct according to a standard of decency and fairness. The crucial words were bonum aequum.
The plaintiff had to say what iniuria he had suffered. He did that in a �whereas’ clause. It was called the �demonstratio’ of the formula. Later on, in the part called the condemnatio, he had to put in his own valuation of the damages which he ought to be awarded. That would operate as a maximum. The programme for the trial would emerge from the proceedings in iure looking like this:Whereas [here would follow a factual description of the wrong alleged to have been suffered by Aulus Agerius], which matter is the subject of the action,
in whatever sum of money it shall on that account seem decent and fair (bonum aequum) to the judge for Numerius Negidius to be condemned to Aulus Agerius,
for so much money, to a maximum of—, let the judge condemn Numerius Negidius to Aulus Agerius;
if it does not appear, let him absolve.1
This is slightly simplified. Also it evades some problems. Two should certainly be mentioned. First, at least some iniuriae were sent for trial not by unus iudex but by a bench of �recoverers’ called �recuperatores’. Secondly, and much more important, it is not absolutely clear whether both actionability and quantum were tested by the standard bonum aequum, or only quantum. This depends on whether in describing the wrong in the demonstratio the plaintiff was obliged to insert a word or phrase referring to some other standard. The obvious choice would be �iniuria, itself, in the ablative. Suppose you had pushed me off the pavement. Slipping for convenience into the second person, did I have to say �Whereas you wrongfully pushed etc.’, which would make actionability turn on �wrongfully’, or did I say enough if I simply alleged �whereas you pushed etc.’? That would leave actionability and quantum to bonum aequum.
You want to say the pushing was done in self-defence, also that the event was not very grave anyhow. The first statement goes to actionability, the second to quantum. Were they or were they not both taken under bonum aequum? This is important because the standard which the formula directed to be applied affects our whole understanding of the delict. That is, of the facts which would and would not come within it. Sadly we cannot eliminate all doubt. Lenel, unsurpassed on this kind of question, inclined to the view that all the work was done by bonum aequum and no other standard was mentioned in the demonstratio.2 If that is right, and I think that it is, very great weight was borne by the clause �in whatever sum of money it shall on that account seem fair and decent to the judge for Numerius Negidius to be condemned to Aulus Agerius'. From what angle should he approach his assessment? That takes us straight to the measure of recovery, which is the matter to which the words are most obviously directed.3.
More on the topic The Action:
- The Action
- Reason Alone Cannot Move Action
- Principles and rules as reasons for action
- A Transcendental Reply Considered (that yes, reason alone can move action)
- A functional approach: Power-conferring rules as reasons for action
- Chapter Five The Making of an Interpersonal System of Constraints on Action
- Ideas in Action: The International Community and International Statebuilding
- CURIANUS' QUERELA INOFFICIOSI TESTAMENTI
- f) A Summary
- A comparative analysis of the different types of sentences
- The Warlord Myth: A Tale of Wicked Men
- The Measure of Recovery
- CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.
- CONCLUSION
- 2.2. Permission and the exercise of normative powers
- EXEGESIS OF D 14.2 AND PAULI SENTENTIAL 2.7
- The Secondary Qualities Analogy
- Concluding Remarks
- Societas (Partnership)