The Formulary Procedure

The formulary procedure was probably first used by the praetor peregrinus, who relied on the ius gentium and was therefore not bound by the strict formalism of the ius civile.

Its application was subsequently extended to cases where both parties to a dispute were Roman citizens and the legis actio procedure was not available by the lex Aebutia, enacted in the second century bc. The reform of civil procedure was completed by the leges Iuliae of Augustus in c. 17 bc, which abolished the legis actio procedure altogether, with minor exceptions.

The formulary procedure derives its name from the formula, a written document prepared in the in iure (before the praetor) stage of the procedure, which contained a formal statement of the claim that if proved before the judge (in the apud iudicem stage) led to the condemnation in damages of the defendant. The available formulae were published by the praetor in his edict, but whenever a new case arose for which no formula and hence legal remedy existed, the praetor could introduce a new formula by issuing the appropriate decree in his edict. In this way he created a new action and, indirectly, extended the scope of the law. The forms of action connected with these formulae were termed actiones honorariae, i.e. actions derived from the ius honorarium.^{^[442]}

The principal forms of action employed by the praetor to deal with cases not covered by the existing law were the actiones in factum, the actiones utiles and the actiones fictitiae. An actio in factum (action based on the facts of a particular case) was an ‘ad hoc’ new action granted to an aggrieved person in a case where neither the ius civile nor the praetorian edict were useful and the case situation justified the furnishing of a remedy on equitable grounds.

When such an action was allowed, the actual facts of the case were incorporated into a new formula ( formula in factum concepta). An actio utilis (‘adapted’ or ‘analogous’ action) was devised by the praetor to tackle a case not covered by the existing law that was analogous to another case with an available legal remedy. Finally, an actio fictitia (action based on a fiction) enabled the praetor to extend the operation of an existing action by using a fiction so that a particular case not covered by the action was placed within its scope. The relevant formula instructed the iudex to assume that certain facts were present or absent in the presented case.

The formulary system featured an important division of actions that had a correlation with the judge’s discretion: the division between actiones stricti iuris and actiones bonae fidei. In actions stricti iuris the relevant formula had to be strictly construed and the judge could only consider the matters it contained. This category embodied actions based on unilateral contracts, such as the stipulatio where the promisor was bound to the precise object promised. On the other hand, the actions bonae fidei presented the judge with a greater latitude of discretion whereby he could take into equitable consideration all facts relative to the case whether or not these were stated in the formula. Actions bonae fidei encompassed those arising from real or consensual contracts, such as sale (emptio venditio), hire (locatio conductio), mandate (mandatum) and partnership (societas).

In the altered conditions of the late Republic the formulary procedure permitted the jurisdictional magistrates to introduce new legal remedies to accommodate the socio-economic relations of an increasingly sophisticated society. For a great span of time after the establishment of the Principate the normal jurisdiction of the magistrates was maintained and the formulary procedure remained the principal method for initiating a legal action in disputes relating to private law. The only element that changed during the Principate epoch was the function of the praetorian edict. As previously noted, in the closing years of the Republic the productive strength of the praetorian edict as a source of law faded and praetorian initiatives became increasingly rare. This trend prevailed during the Principate age and as the praetor’s ability to develop new legal remedies diminished, the changes to the edict were based on measures introduced by other law-making agencies, such as imperial enactments and senatorial resolutions.

3.6.3

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Formulary Procedure

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