The formulary system

As we saw in chapter 4, in the legis actio procedure claims had to be made in accordance with certain forms {legis actiones) derived directly from the law. If, in making his claim, a plaintiff used the wrong legis actio, or departed from the prescribed form, his claim was rejected.

The per formulam procedure was probably first introduced by the praetor peregrinus as a way of dealing with disputes involving foreigners.

Its application was subsequently extended to cases in which both parties to a dispute were Roman citizens by the lex Aebutia, passed in the first half of the second century BC.^[644] The reform of civil procedure was completed by the leges luliae iudiciorum publicorum et privatorum of Augustus in 17-16 BC.^[645] [646] By one of these laws the legis actio procedure was abolished except in cases which fell in the jurisdiction of the centumviral court and in certain cases involving a threat of damage to another person's property (damnum infecturn)?' Under the new system, the praetor was given the freedom to go beyond the strict letter of the law and accept or refuse a claim, even where this did not accord with the ius civile, on the grounds of what he considered to be right and equitable.

Once the praetor had decided to grant an action to a claimant, he nominated the judge (iudex) who was to try the case and instructed him to condemn the defendant if certain facts were proved or, if not, to absolve him. The praetor's instruction to the judge was set out in a written form and was called formula. The various forms of action based on these formulae were included in the praetorian edict (edictum perpetuum) and were termed actiones honorariae, i.e. actions derived from the ius honorarium. As was noted before, these were distinguished from the actiones civiles, i.e. the actions derived directly from the ius civile. The principal forms of action through which the praetor carried out his functions were the actiones utiles and the actiones in factum. The actiones utiles were actions created by the praetor through a modification of an existing formula in order to deal with a situation not covered by the original formula. To the category of actiones utiles belonged the actiones fictitiae, i.e. actions adapted to situations not covered by an existing formula by the use of a fiction in the original formula. In other words, here the praetor fictitiously presumed the existence of certain facts which according to law had to be present if an action at law was to be granted. For example, if the parties to a dispute were not citizens of Rome, certain actions could be made available to them through the addition to the relevant formula of the phrase 'as if they were Roman citizens'.^[647] [648] An actio fictitia was the famous actio Publiciana, named after the praetor Publicius who introduced it at the beginning of the first century BC.

An important category of actions that needs to be mentioned here were the so-called actiones bonae fidei, actions whose formulae included the clause ex fide bona (in good faith) as a further condition. In bona fidei actions the judge was free to decide the matter (for example, to determine the form and amount of compensation which the defendant had to pay to the plaintiff) on the basis of the principle of good faith. He could inquire into the true intentions of the parties and could take into account any equitable defences (even if these were not expressly pleaded), as the formula in these cases instructed the judge to ascertain what the defendant ought to do or give ex bona fide and to condemn accordingly. Actions arising from real or consensual contracts, such as emptio venditio (sale), locatio conduct io (hire), mandatum (mandate) and societas (partnership), were actions bonae fidei. By contrast, the term actiones stricti iuris was used to denote actions the formulae of which did not include the clause ex fide bona. In actions stricti iuris the relevant formula had to be strictly construed and the judge could not take into consideration anything not contained in it. Actions based on unilateral contracts, such as the stipulation where the promisor was bound to the very thing he had promised, belonged to this category of actions.^[650] [651]