The execution of judicial decisions under the formulary system

As we saw in chapter 4, with respect to personal actions (actiones in personam), the execution of a decision under the legis actio procedure often involved the use of physical force by the party who won the case against the defendant (manus iniectio iudicati).

Although this form of execution did not disappear after the introduction of the formulary system, it was gradually replaced by forms of execution aimed at the property rather than the person of the party condemned. Thus, the manus iniectio was superseded by the actio iudicati, brought by the plaintiff against the defendant who failed to pay the debt within thirty days from his condemnation by the judge (in the in iudicio phase) or his acknowledgment of the debt before the praetor (in the in iure phase). The actio iudicati was instituted in the same way as any other action: it was raised before the praetor (in iure) and, if the defendant contested the validity of the judicial decision by which he had been condemned or claimed that he had already paid his debt, the case was referred to a private judge for trial (apud iudicem). Before the trial the defendant had to provide security that, if he lost the case, the debt would be paid (satisdatio iudicatum solvi).'⁴⁵ But if the defendant against whom an actio iudicati was brought lost his case, he was condemned to pay double the amount specified in the previous judgement.

Now, if the defendant was condemned at a trial for an actio iudicati or if, before the trial ended, he admitted his debt, the execution of the judge's decision could be carried out against the defendant's person or his property. In the former case the execution was conducted in the same way as in the legis actio procedure: the praetor issued an order (decretum) by which the plaintiff was authorised to seize and imprison the defendant (duci inhere).'''" This form of execution was governed by the provisions of the Law of the Twelve Tables relating to the manus iniectio iudicati, ^{^[719]}[720][721]although the provisions under which a creditor was permitted to kill his debtor or to sell him as a slave no longer applied.

An execution against the debtor's property involved the selling of the property or, under certain conditions, its surrender by the debtor to his creditor or creditors. In the former case the debtor's property was sold as a whole. This method of execution, known as venditio bonorum, was introduced before 118 BC by the praetor Publius Rutilius,^{^[722]} and was probably modelled on a similar procedure followed by the quaestors in enforcing the payment of debts to the public treasury (aerarium).

In the procedure of the venditio bonorum the praetor, or the provincial governor, upon the creditor's request, issued an order (decretum) authorising the creditor to enter into possession of the debtor's property (missio in bond). Moreover the praetor appointed a curator bonorum, i.e. the person by whom the property of the insolvent debtor was to be administered. By appointing a curator bonorum the praetor sought to preserve the property by preventing the debtor from disposing of it before the execution procedure was completed (rei servandae causa). At the same time it was announced publicly that the property of the insolvent debtor was to be sold (proscriptio). Creditors had to come forward and announce their claims within thirty days from this announcement.^{^[723]} After the thirty- day period had passed the debtor was pronounced infamis (dishonest). At the same time the praetor invited the creditors to nominate from among themselves a receiver (magister bonorum) who would organise the sale of the debtor's property. The property was then sold at a public auction conducted by the magister bonorum under the supervision of the praetor.^{^[724]}The property was made over to the highest bidder (bonorum emptor) who, however, did not acquire full ownership before the completion of the period of usucaption (usucapio))^{^[725]}' The buyer of the property could be granted an interdictum possessorium ^{^[726]}[727][728] for entering into possession of the property, as well as other actions for the payment to him of debts originally due to the insolvent debtor (actio Rutiliana, actio Serviana).'⁵³ It should be added here that the insolvent debtor whose property was sold through a venditio bonorum was not released from his obligations towards his creditors.

A year after the venditio bonorum the creditors could initiate a new sale of any property which the debtor had in the meantime acquired, if their claims were not fully covered by the proceeds of the earlier sale. The debtor, however, could in some cases rely on a beneficium competentiae, a special remedy that entitled the debtor to pay his creditors only as far as his means permitted.

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Because of the grave consequences which a venditio bonorum entailed for the debtor, certain categories of persons could not be subjected to it. These included members of the senatorial class and persons who, in the eyes of the law, were incapable of regulating their own affairs, provided that they had no guardian. If a person belonging to one of these categories became insolvent his property was placed by the praetor under the control of an administrator (curator distrahendorum bonorum gratia).'⁵⁴ The latter conducted the sale of the insolvent person's property by individual items (not as a whole) until enough money was obtained to satisfy the creditor's claims. This method of execution, termed bonorum distractio, did not result in infamia for the insolvent person. Finally, under a lex Julia, introduced in the time of Augustus, it was recognised that a person who became insolvent without his fault could seek permission by the praetor or the provincial governor to surrender the whole of his property to his creditors (cessio bonorum) in order to avoid the consequences (especially the infamia) which an execution by a venditio bonorum entailed.^{^[729]} If the debtor's request was accepted, he was entitled to a beneficium competentiae, i.e., he was required to pay only as much as his means permitted and without being deprived of the necessary means of subsistence.^{^[730]} The property (or part thereof) surrendered was sold at a public auction and the proceeds were divided among the creditors.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The execution of judicial decisions under the formulary system

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