The formula of the action

Each legal action was based on a proper and precise written formal statement (formula) in which the issue was exactly defined and pleaded. The formula informed the judge of what the case was strictly about and required the judge either to condemn the defendant or to absolve him, as the case might be.

The appointment of the judge (nominatio iudicis) appeared at the head of each formula (“Let Titius be judge”). After the nomination came the most important part of the formula: the intentio or exact definition of the claim directed to the judge in hypothetical terms: “If it appears that Numerius Negidius ought to give Aulus Agerius three thousand sesterces...” Aulus Agerius and Numerius Negidius were imaginary names used in the formulae and were expressions of the Roman sense of humor. Aulus Agerius referred to the plaintiff (the person who sues: is qui agit, hence Agerius). Numerius Negidius referred to the defendant because it was he who might have to pay (numerare, hence Numerius) the judgment debt and who normally rejected (negare, hence Negidius) the plaintiff’s claims.

If the plaintiff claimed in the intentio more than he was entitled to, he lost the case as an overclaim (pluris petitio). Overclaim also occurred when the plaintiff claimed in a city other than that in which the payment had to be performed, or before the payment was due. In personal actions in which the claim was uncertain (intentio incerta), a demonstration would be inserted at the beginning of the formula (prior to the statement of intention) to identify more accurately the subject of the controversy.

The defense that the defendant was proposing against the plaintiff’s claim was inserted into the formula through a clause called exception (exceptio).

The exception did not deny the plaintiff’s claim. It only added a counter­hypothesis in favor of the defendant for the judge to consider. The structure of the exception was a conditional clause with a negative: “unless something else is also true.” The defendant, for instance, could object that, although he indeed had to pay a thousand sesterces to the plaintiff (intentio), it was also true that the time to pay had not yet elapsed (exceptio pacti). The defendant could also allege that the plaintiff had acted fraudulently (exceptio doli: “unless some fraud had been committed by the plaintiff”) or that the defen­dant was the owner of the claimed object according to civil law (“unless the defendant had proved civil ownership”). Examples abound.

The insertion of an exception in the formula required the praetor’s approval. If the plaintiff rejected this insertion, the praetor could threaten him with refusal of the action. The plaintiff, however, could oppose the defendant’s exception with a replicatio. That happened when a further set of relevant facts was also true that the judge needed to consider to reach the right conclusion. For instance, when the defendant alleged that the plaintiff had agreed not to sue him in court for a certain time (exceptio pacti), the plaintiff could allege that, although that was true, a new agreement had annulled or modified the limit of time (replicatio pacti). Replicatio was not the last word. The praetor might insert in the formula a triplicatio or even further.

Different from the exception, but close to it, was the prescription (prae­scriptio), a preliminary formula clause limiting the scope of the claim. It was a necessary limitation, a reservation that the judge should consider. That happened, for instance, when the claim consisted of an installment. Without prescription, the defendant could allege that the action was extinguished when the plaintiff sued him for a second partial payment. Prescription, however, allowed later actions derived from the same transaction. To avoid the effects of the joinder of the issue (non bis in idem), the plaintiff asked the praetor to insert a prescription in the formula that allowed him to bring an action for the remaining partial payments when they became payable (Gaius 4.131).

The condemnation (condemnatio) was the clause in which the judge was given the power of condemning or absolving the defendant in accordance with the instruction of the formula (Gaius 4.43). According to the formula, the judge had only the choice to condemn for a sum of money (judgment debt). His final judgment was always monetary. He had no power to condemn the defendant to perform some activity or service, to hand over an item to the plaintiff, and so on. A basic condemnation would be: “You, judge, condemn Numerius Negidius to pay Aulus Agerius three thousand sesterces; but if it (the intention) does not appear, absolve him.” In those actions in which the condemnation was not directed at a fixed sum (certa pecunia), the judge would also establish the amount the defendant had to pay to the plaintiff.

A discretionary clause (clausula arbitraria) could be incorporated in the formula of some actions in which the restitution of the claimed object implied a more valuable benefit to the plaintiff than a monetary judgment. The clause stated: “and the claimed object (res litigiosa) has not been restored to Aulus

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Agerius according to the opinion of the judge.” In these cases, the praetor authorized the judge to delay his judgment and to condemn the defendant only if there had been no restitution of the claimed object to the plaintiff.

For an overall view of the formula, consider two different formulae of actions: the condictio, which is the basic action for payment of a due sum of money, and the rei vindicatio, which is the action for recovery of property. The formula for the condictio is: “Let Titius be judge. If it appears that Numerius Negidius must pay two thousand sesterces to Aulus Agerius, you, judge, condemn Numerius Negidius to pay two thousand sesterces to Aulus Agerius; if it does not appear, let him be absolved.” A little more complicated was the formula of the action for recovery of property: “Let Titius be judge. If it appears that the slave Nicia that is at issue belongs to Aulus Agerius under civil law, and has not been restored to Aulus Agerius according to the opinion of the judge, whatever the slave’s value shall be, you, judge, condemn Numerius Negidius to pay three thousand sesterces to Aulus Agerius; if it does not appear, let him be absolved.”