The formulary system

The faults in the legis actiones system—its excessive formality, archaic nature, and lim­ited effectiveness—made it unsuitable in the long term for a rapidly expanding, eco­nomically vibrant Rome.

3.3.1 Summons

The old system of oral summons continued, but with some modifications. The plaintiff summoned the defendant to appear before the praetor, giving notice of the claim (often done by showing the defendant a draft formula):

Ulpian, Edict, book 4: Where anyone wishes to bring an action, he should give notice; for it seems most fair that one who is about to bring an action should give notice so that the defendant accordingly may know whether he ought to admit the claim or contest it further and so that if he thinks it should be contested, he may come prepared for the suit, knowing the action by which he is sued.

The defendant had several options. He could go immediately before the praetor; or he could provide a vindex as a guarantor of his future appearance; or—the most favoured option—he could make a promise (vadimonium) to appear on a particular day, in which case he would promise to provide security and to pay a penalty for failure to appear at the agreed time in the proximity of the court. (See Metzger, E., 'The Current View of the Extra-Judicial Vadimonium' (2000) 117 ZSS (rA), 133-78 for a critical examination of the scholarly views on this subject as well as Metzger, Litigation, chs. 5-7.) Breach of vadimonium resulted not only in loss of the security but also in liability to pay the penalty and the possible loss of the case.

Sanctions were imposed on an indefensus~a defendant—who tried to avoid being summoned, (e.g. by hiding) or who refused to obey the summons or to provide a vindex. For example, the praetor could allow the plaintiff the possession of the defendant's estate, with a possible right of sale. The right to seize a reluctant defend­ant and drag him to court still survived but was probably used only as a last resort. See Metzger, E., 'Absent Parties and Bloody-Minded Judges' in Mapping the Law, 455-73.

3.3.2 Trial

As before, trial procedure was divided into two distinct stages—the preliminary hearing and the full trial. As a system of appeals gradually emerged, the jurisdic­tion of local courts in the Roman Empire became restricted in terms of the financial value of the claim and nature of the action (e.g. where it involved infamia) brought before the court (see ch. 84 of the Lex Irnitana) (but see now Metzger, E., 'Agree to Disagree: Local Jurisdiction in the Lex Irnitana', in Judge and Jurist, 207-26). These restrictions were imposed by various pieces of legislation. Where a matter, which exceeded these statutory limits, was brought before a local magistrate, the preliminary proceedings were interrupted and the plaintiff was required to make a formal promise (a judicial vadimonium) to appear in the court that had jurisdiction over the matter (see Rodger, A.

(see 2.2.2.4). Any departure would be obvious since the formulae and the Edict were displayed in the Forum Romanum. Indeed, taking the defendant there was one method of giving notice of the ground of action:

Ulpian, Edict, book 4: Labeo says that a person also gives notice if he brings his adversary to the tablets proclaiming the edict and points out the action which he is about to dictate or declares the one which he intends to use. (D.2.13.1.1.)

A praetorian edict introduced a rule concerning discovery: the plaintiff had to pro­duce any documents on which he intended to rely at the subsequent trial (but the defendant was not subject to a similar duty). Another change was that the requirement of a deposit of a substantial sum of money as a wager was abandoned. In effect, litigation became free, rather than being subject to financial penalty—a fundamental departure from the norms of the past.

3.3.2.2 The formula

What was in the formula? It was a document containing the total 'programme' of litigation—all the questions of law and fact—and it was made up of a number of possible clauses, some essential, others not (depending on the circumstances):

(a) Nominatio The appointment of the judge. The procedure for selecting a judge was similar to the previous system, the plaintiff suggesting names from the official list until the defendant agreed, failing which the praetor would make the choice himself. A nominatio was essential in a formula.

(b) Intentio The Plaintiff's statement of claim. This was the very heart of the formula, whereby the plaintiff stated the cause of action, alleging either an existing civil law right or the presence of such facts as justified the allowing of his claim.

(c) Condemnatio The clause that directed the judge to make a decision by 'con­demning' or 'absolving' the defendant (cf. Inst.Gai.4.43.). The condemnatio was expressed in money terms, the amount being stated if the plaintiff was seeking a liquidated (specific) sum; otherwise, the amount was left to the discretion of the judge (especially where the condemnatio contained the clause ex fide bona). But a tax­atio could be inserted—a clause limiting the amount that the judge could award. In an action for the recovery of property, a direction was invariably added to the condemnatio, instructing the judge to condemn the defendant only on failure to restore the disputed thing. The defendant, if he failed to restore, would have to pay the value of the property as assessed by the plaintiff on oath. This procedure was necessary because the judge, being a layman whose function was to give an 'opin­ion', strictly could not order the defendant to do anything—there was no equiva­lent in the ins civile to specific performance. Where the object of the action was not to condemn the defendant but to seek a declaration of rights, an adiudicatio (rather than a condemnatio) was put in the formula, directing the judge to give to a party 'as much as should be adjudged to him'. However, an adiudicatio could also be used to assign rights—rather than just to declare them—as in the action for division of common property (see 7.2.8).

(d) Demonstratio A clause stating the facts from which the claim arose (cf. Inst. Gai.4.40.). It was used only in actions in personam for unliquidated damages, i.e. where the judge had a discretion as to the amount awarded. In such cases a clause demonstrating the facts on which the claim was based was obviously essential.

(e) Exceptio If a defendant wished to raise a specific defence, he would do so in a special clause, the exceptio, that would defeat the plaintiff if it was upheld. A simple denial of the facts did not require an exceptio.

Ulpian, Edict, txiok 76: Marcellus says that a replication of fraud is not allowed against a defense of fraud. Labeo is also of the same opinion; for he says that it is inequitable that mutual wickedness, in fact, should serve as a reward to the plaintiff, but serve as a penalty against him who is being sued, since it is far more equitable that the plaintiff recover nothing from an act which was performed with perfidy. (D.44.4.4.13.)

Exceptio and repiicatio were not necessarily the end of the saga. The defendant could plead a reply, if he had one, to the repiicatio; the plaintiff could plead a reply in turn, and so forth. These defences and counter-defences were placed in sequence in the formula. Whichever was the last (in the sequence) to be proved on the facts 'won' the case.

(f) Praescriptio A clause placed, if necessary, after the nomination of the judge. Its chief function was to limit the cause of action as narrowly as was desirable in the circumstances. This benefited the plaintiff since he thereby ensured that the proceedings did not consume the whole of his action. Suppose, for example, that the defendant had contracted to make payments to the plaintiff in instalments, and had failed to make the first payment. The plaintiff would insert a praescriptio into the formula, limiting the action to the unpaid instalment; otherwise, he might not be able to sue for later breaches of the contract. This had to be done to avoid the effect of litis contestatio, which effectively 'consumed' the previous cause of action (see 3.3.2.4).

3.3.2.3 Typical formulae

(a) 'Let Titius be judge if it appears that the property which is disputed belongs to Aulus Agerius at civil law, and it be not restored to him in accordance with the judge's decision, you, judge, condemn Numerius Negidius to Aulus Agerius for so much of his property as the thing will be worth; if it does not appear, absolve him.'

This was the basic formula used in a vindicatio, the standard remedy for resolving disputes over the ownership of property.

(b) 'Let Titius be judge. If it appears that Numerius Negidius should pay Aulus Agerius 100 denarii [silver coins), then, if there is no agreement between Aulus Agerius and Numerius Negidius that the sum should not be sued for, or if there has been any fraud on the part of Numerius Negidius, you, judge, condemn Numerius Negidius to Aulus Agerius for 100 denarii; otherwise absolve him.'

Here we have an action in personam to enforce an obligation to pay a liquidated sum. The defendant has pleaded a defence {exceptio) that there was an agreement that the sum would not be sued for. There is a repiicatio by the plaintiff based on the alleged fraud of the defendant. There is no need for a demonstratio in this formula since the action is for a liquidated sum.

'Let Titius be judge. Whereas Aulus Agerius sold to Numerius Negidius the slave who is the object of this action, which sale is the matter involved in this case, whatever on that account the defendant ought in good faith to pay to or do for the plaintiff, that thing the judge is to condemn Numerius Negidius to pay to Aulus Agerius; if it does not appear, absolve him.'

This is the formula that would typically be used in action on the contract of sale. Since the action is for unliquidated damages, a demonstratio is required, consisting of the opening clauses, i.e. 'Whereas... case'.

3.3.2.4 Acceptance of the formula

On the appointment of the judge and the insertion of his name in the nominatio, the defendant would formally 'accept' the formula. The acceptance terminated the preliminary hearing and brought joinder of issue, the effects of which were much as they had been under the actions-at-law system, i.e. the original cause of action was consumed.

3.3.2.5 Representation

Another important departure from the previous system was that representation of parties became generally possible. If either party wished to proceed through a rep­resentative (procurator), the name of the latter had to be substituted in the formula (for that of the principal) before joinder of issue. Thus, the representative became the actual party in the action, the judge directed to give judgment for or against him. Originally, the legal consequences of having a representative differed accord­ing to whether he had been appointed formally or informally. But, by the late clas­sical period, such differences had disappeared. The principal came to be regarded as fully bound by the representative, but was entitled to enforce the judgment obtained by the latter. The function of the representative was thus rather different from that of the modern lawyer (but similar to that of the medieval attorney), see Buckland and McNair, Roman Law and Common Law, 407-8; Bablitz, Actors and Audience, chs. 6-7.

3.3.2.6 Taking oaths

The dispute could sometimes be decided entirely at the preliminary hearing, obvi­ating the need for a full trial before the judge—e.g. when the plaintiff withdrew his case or where the defendant admitted liability. Or the matter might be decided (in the praetor’s presence) through the use of oaths. The plaintiff could challenge the defendant to take an oath. If the defendant accepted and took the oath, swearing to the justice of his case, he won; if he refused, he lost. There was a third possibil­ity—the defendant could tender the oath to the plaintiff, who won if he took the oath, but otherwise lost (he could not offer the oath back). The procedure may seem absurd to modern readers but the taking of a formal oath to the gods was a matter of the utmost solemnity for most Romans. Even the worst rogue would hesitate to perjure himself in such circumstances and the penalties for perjury were severe. However, the procedure could only be used in limited circumstances—in cases involving claims to a specific thing or specific sum of money—although it is pos­sible that the category of actions was widened later. It seems that the oath-taking procedure continued to be used during the Empire. A title of the Digest is devoted to oaths, and Gaius is quoted as stating that oath taking is an important means of expediting litigation (I). 12.2.1.).

3.3.2.7 Full trial

There was little change from the procedure under the former system. The trial took place on a day fixed by the praetor and was normally held in public (Bablitz, Actors and Audience, chs 1, 2, and 5). The existence of the written formula shortened the oral exchanges. Rules of evidence still hardly existed, although it was recognized that any assertion should be proved by the person making it. Witnesses were not yet generally compellable. Oral evidence was still preferred, but written evidence was being increasingly used. The judges relied on the advice of jurists in reaching a decision (Bablitz, Actors and Audience, ch. 4). Although the formula directed a judge to condemn or absolve the defendant, it seems that a judge could declare that he was unable to reach a decision, in which case another judge would have to be appointed. There was still no system of appeals, although some of the early emper­ors heard the occasional appeal by way of granting a favour.

3.3.2.8 Limitation of actions

As a general rule, there was no limitation period on ius civile actions. They were 'per­petual', i.e. they did not have to be brought within a fixed period of time from the date when the action arose. The same was largely true of those praetorian actions that were compensatory in nature; but those that were penal normally had to be brought within a year. For the purposes of this rule, a 'year' was more than a calen­dar year, since days on which litigation was not possible were excluded from the calculation. Other limitation periods were possible, e.g. six months for the actio redhibitoria for the rescission of a contract of sale.

3.3.3 Execution

The judgment debtor still had to be taken before a magistrate after the lapse of 30 days from the court's judgment. However, the creditor had to pursue an actio iudi- cati, 'an action on the judgment', under which the debtor was given a last chance to satisfy the judgment before any further execution procedures were invoked. The debtor could contest the validity of the judgment, in which case he had to provide personal security, and was liable to double damages if his claim failed. It was at the next stage of the execution process that two important changes were introduced under the formulary system—sale of assets, and surrender of the estate.

served as a model for bankruptcy procedure in modern legal systems. The estate of the debtor was sold to the bidder who offered the highest dividend (i.e. percentage of the debt) to the creditors. The debtor remained fully liable for any unpaid part of the debt. This was a deliberately harsh process, the threat of which was intended to force payment from the debtor. If he failed to pay he would probably suffer infamia, i.e. legal disgrace (see 4.4.2.5), lose all his property, and incur the social stigma of bankruptcy. Not surprisingly, there were restrictions on the use of the auction procedure. For example, it could not be ordered against apupillus (a ward in guardianship) or someone away on public service. And it was not normally granted against persons of high rank, for whom a less embarrassing procedure was provided, which did not involve infamia, or the sale of the whole of the estate—only what was required to pay the debts.

3.3.3.2 Cessio bonorum ('Surrender of the estate')

This was a procedure, introduced in Augustus' reign, whereby a judgment debtor voluntarily surrendered his property to the creditors. The property was sold off, but the debtor would not be subjected to legal disgrace or to possible imprisonment by the creditors. Surrender was not available as of right: it applied only where the prae­tor was satisfied that the debtor had genuine assets and that the bankruptcy was the result of misfortune. See Pakter, W., 'The Mystery of Cessio Bonorum', in Ommagio a Peter Stein, 323-42.

3.3.4 Praetorian remedies

The jurisdiction of the praetor in civil litigation under the formulary system was complemented by a number of legal powers that were available to him through his possession of imperium. These powers were of great practical importance, often enabling a praetor to dispose of an issue without the need for a trial.

3.3.4.1 Restitutio in integrum (rescission)

This was an order nullifying a transaction and restoring the parties to their original position, i.e. 'a return to the beginning'. When could such an order be granted?

Ulpian, Edict, book 11:... the praetor helps men on many occasions who have made a mistake or been cheated, whether they have incurred loss through duress or cunning or their youth or absence or through change of status or justifiable mistake. (D.4.1.1.)

The order normally had to be sought within one year of the transaction (four years under Justinian). The person seeking it had to show that he had suffered some pro­prietary loss or that he had incurred a future commitment as the result of the trans­action. And he had to show 'cause', i.e. grounds such as those specified previously.

3.3.4.2 Missio in possessionem (distraint)

This was an order authorizing the seizure of property. It could be used to seize the whole of an estate, as in the case of a judgment debtor (see earlier), or only a part of the assets. The order generally entitled the recipient to take possession of the property. Sometimes, however, missio authorized little more than the right to enter property and to hold it temporarily in order to pressurize a person to do or to abstain from doing something. Such orders were of considerable practical impor­tance in the effective operation of the Roman legal system.

3.3.4.3 Praetorian stipulations

These were formal promises that were made by parties as the result of praetorian intervention, either in the course of litigation ('judicial¹ stipulations) or outside it. An example of the latter was where an owner of property in a dangerous condi­tion promised security to indemnify his neighbour against damage. In such a case, refusal to make the stipulation could result in an order for distraint being granted to the neighbour. Another stipulation that was relatively common in practice was the promise, demanded of certain guardians, to give security for the safety of the property of their ward (see 5.4.1.3).

3.3.4.4 Interdicts

These were perhaps the most important of the praetorian remedies. They were orders, normally issued after a complaint by an aggrieved person, instructing a per­son to do or refrain from doing something (comparable in some ways to injunctions in English law). Sometimes, an interdict was obtained without full investigation by the praetor of the merits of a case. In such a case, the summary finding of the praetor might prompt the aggrieved party to go to trial before a judge. In this way, the granting of the interdict resulted in a bypassing of the usual preliminary hear­ing: the interdictal proceedings were the preliminary hearing, as emphasized by Buckland and McNair, Roman Law and Common Law—'The interdict is essentially the initiation of a piece of litigation' (422). And, sometimes, there were no further proceedings at all, if the interdict was not contested, in which case the praetor would have effectively resolved the dispute himself.

Interdicts were classified in various ways, e.g., as possessory and non-possessory. The latter category (much used in practice) included interdicts protecting public rights in the use of roads and highways:

Pomponius, Sabinus, book 30: It is open to anyone to claim for public use what belongs to the use of all, such as public roads and public ways. Therefore, interdicts are available to safe­guard these at anyone's demand. (D.43.7.1.)

The possessory interdicts were very important in the development of the law of prop­erty, offering effective protection in various ways of a person's right to possession (see 6.5.5.1). And interdicts were central to the development of the ins honorarium. The speedy, summary justice dispensed through their widespread use was invaluable to the operation of the Roman legal system in the later Republic and the Empire.

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