The formulary procedure

The formulary procedure encompassed the ordinary civil proceedings (ordo iudiciorum privatorum) during the classical period. The main features of the legis actiones procedure remained.

Unlike the procedure of the legis actiones, the formulary procedure incor­porated written formalities. The key role of the written formula gave the whole formulary system its name. In formulary procedure, the parties no longer had to use the ritual words established by the civil law. Instead, the plaintiff had the freedom to plead the event, which could bring an action with the support of the praetor, based in civil law or praetorian law. Thus,

formulary procedure gave great power and relevance to the praetor. He could grant (dare actionem) or refuse to grant an action (denegare actionem); he could introduce new actions or modify old ones, formulate praetorian reme­dies, and admit defenses. By setting out model clauses of actions (about two hundred) or other remedies in his yearly edict, the praetor controlled the proceedings because the issues must ultimately be embodied in a formula the praetor approved.

The praetor was the jurisdictional magistrate par excellence. If both parties were Roman citizens, the magistrate with jurisdiction inside the limits of Rome was the urban praetor. If one or both litigants were not Roman citizens, the jurisdictional magistrate was the praetor peregrinus. The aediles curules had jurisdictional power over sales concluded in the market of Rome. In the provinces, the governor had the jurisdictional power and played the role of the praetor. Local magistrates were to display and administer justice according to the edict of the provincial governor (chapter 85 lex Irnitana). In Italian municipia, the local magistrates had a limited jurisdiction, and it was possible for the parties to demand transfer of the procedure to Rome (vadimonium Romani). The plaintiff, however, should appear before the praetor of Rome or before the provincial governor, but not both successively.

The final judicial decision of the trial was entrusted to a private citizen without public office, the judge (iudex). Both parties freely chose him from a list of potential candidates (album iudicum), and the praetor authorized him to rule on the case. When the judge was able to make some judgments at his discretion, he was called arbitrator (arbiter). For certain claims, especially when a public interest was at stake, three or five judges were chosen (recup­eratores). Recuperatores were always selected by lot (chapter 84 lex Irnitana).

According to Gaius (4.104), trials that took place within a mile of Rome between Roman citizens and before one Roman judge were called legitimate (iudicia legitima). They rested on statutory law. All others, in which one of these conditions was not satisfied, depended on the imperium of the praetor (iudicia imperia continentia). The distinction was important: a) the legitimate trial expired eighteen months from the joinder of the issue, but all others expired with the end of the imperium of the magistrate; b) the legitimate trial was extinguished by the loss of a person’s civil status (capitis deminutio); and c) in these trials, women needed the cooperation of a guardian (auctoritas tutoris) to become a litigant. Additionally, in the legitimate trial, personal actions could be extinguished by operation of the law itself (ipso iure) when the defendant had already been sued for the same issue by the same plaintiff in a previous trial. In all other trials, however, the extinction of the action was effective not automatically, but only when the praetor granted the defendant an exception.