The Formulary System

As elaborated previously, the earliest form of civil procedure in Roman law was the legis actio, so called because the only actions allowed were those created by statutes (leges), or closely adapted to the language of statutes by the pontiffs.

Under the new system, the praetor was free to go beyond the strict letter of the law and accept or refuse a claim on the grounds of what he deemed right and equitable. He did not accomplish this by introducing new legal rights (as indicated earlier, the magistrates had no legislative powers). Rather, he granted the claimant an action and promised to grant a remedy if the facts forming the basis of the claim were validated in the subsequent trial. As in Roman law a right was regarded as a legal right only if it was enforceable by a recognized process of law, by introducing new remedies the praetor was actually creating new legal rights.

The formulary procedure derives its name from the formula, a written document containing an exposition of the dispute between litigants and instructions from the praetor to the judge (judex) assigned to try the case. In contrast to the legis actio procedure where the plaintiff selected the relevant legis actio at his own risk, the magistrate at the request of the party concerned issued the formula in the formulary procedure. When it was requisite to introduce a new formula to address hitherto unfamiliar facts, the praetor did so by issuing the appropriate decree in his edict. Thus he established various formulae that were moulded by the nature and circumstances of the dispute, and each had its own wording. The forms of action connected with these formulae were termed actiones honorariae, i.e. actions derived from the ius honorarium.^[1221] The vast majority of the actiones honorariae were praetorian creations, although several important actions were created by lesser magistrates such as the curule aediles. The actiones honorariae were distinguished from the actiones civiles, i.e. the actions originating from the ius civile. Several actiones civiles were established by legislation, whereas others crystallized from the creative activity of the jurists. When a formula pertained to an actio civilis, it was designated formula in ius concepta, in contradistinction to a formula in factum concepta that related to an actio honoraria?^[1222]

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.

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^[1225] where the promisor was bound to the precise object prom­ised.^[1226] 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. This power was granted by the praetor through appending the clause ex fide bona (in good faith) to the formula. In bonae fidei actions the judge could scrutinize the true intentions of the parties. He could consider 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 bonae fidei encompassed those arising from real or consensual contracts, such as emptio venditio (sale), locatio conductio (hire), mandatum (mandate) and societas (partnership). During the later republican period, contracts where the parties' obligations were determined according to the requirements of good faith emerged to play an essential part in economic life.^[1227]

The formula as such was composed of various clauses or sub-divisions, but not all had to exist in every formula.

Besides the standard clauses outlined above, a formula occasionally contained additional clauses such as reservations (praescriptiones) and one or more defences (exceptiones) and counter-defences (replicationes) raised by the defendant and the plaintiff respectively. The praescriptio was an extraordinary clause that a litigant could elect to have inserted in the formula (directly after the appointment of the judge and before the intentio) when he wished to precisely limit the extent of the claim. Two kinds of praescriptiones were distinguished: the praescriptio in favour of the plaintiff (praescriptio pro actore) and the praescriptio in favour of the defendant (praescriptio pro reo). A praescriptio pro actore was applied, for instance, in a case where the plaintiff sued for an installment of a debt while retaining his right to later sue for further installments. The praescriptio in such a case recited: ‘let the action be only for such things as are already due'.^[1233] A praescriptio pro reo was applied, for example, when the defendant wished to express the reservation that a decision in the present case would have a prejudicial effect on the determination in a more important case (praescriptio praeiudicii). However, this form of praescriptio fell into disuse from an early period and was replaced by the exceptio. The latter was a clause in the formula inserted by the defendant before the condemnatio that contained an assertion that there were circumstances supporting a defence against the plaintiff’s claim. For example, a defendant might assert that he owed the sum claimed by the plaintiff but a special agreement entailed the plaintiff assuming the obligation not to sue for the money. In such a case, the defendant’s objection would be inserted into the formula as a negative condition: the judge may condemn the defendant ‘if there has not been an agreement that the plaintiff will not bring an action’. Depending upon their period of operation, exceptions were divided into peremptory or perpetual and dilatory or temporary.^[1234] A peremptory (peremptoria) exception could be invoked without a time limitation (exceptio perpetua). If a party failed to raise such an exception during the preparation of the relevant formula due to mistake, they could later seek the insertion of an exception in the formula.^[1235] Dilatory or temporary defences, on the other hand, could be raised only within a limited period of time or under certain circumstances.^{style='font-size:9.5pt;font-family: "Times New Roman",serif;color:black'>[1236]} Exceptions were further divided into exceptions based on the ius civile (exceptiones civiles),^[1237] and those developed from the praetor’s activity (exceptiones honorariae).^[1238] Significant among the exceptiones honorariae was the exceptio doli that emerged from the claim that the plaintiff had acted fraudu­lently (dolo). Another notable exception in the same category was the exceptio metus causa, the defence based on duress. The term exceptiones utiles referred to exceptions that the praetor had formulated on the basis of other exceptions located in the edictum perpetuum. Exceptiones in factum, on the other hand, were new exceptions granted by the praetor in response to claims not covered by the exceptions already recognized.^[1239] The plaintiff could reply to the defendant’s exceptio by denying the facts that produced the defence, or by raising his own counter-defence against it. For example, the plaintiff might deny the defendant’s claim that the former had promised not to institute an action against him by asserting that this promise had subsequently been revoked, or was limited to a specific time period. The plaintiff’s counter-defence (replicatio) was also inserted into the relevant formula as an additional condition.^[1240] The defendant could respond to the plaintiff’s replicatio by raising a further exceptio, now termed dublicatio. This sequence of responses would proceed until each party’s case was thoroughly stated.^[1241] All the exceptions and counter-exceptions were inserted into the relevant formula. However, it appears that exceptiones were used less frequently due to the proliferation of the actiones bonae fidei, i.e. actions where good faith was explicitly taken into consideration.

Envisage a case presented to the praetor where the defendant had promised by a verbal contract (stipulatio) to pay the plaintiff 5,000 denarii, but failed to do so. In such a case, the plaintiff could initiate an action against the defendant known as condictio certae pecuniae. The formula for this action was elaborated in the praetorian edict and proceeded as follows:

Let X be the judge. If it appears that the defendant ought to pay to the plaintiff 5,000 denarii, let the judge condemn the defendant; if this does not appear, let the judge absolve him.

In this type of case, the judge was instructed simply to examine whether the plaintiff’s claim was true or not. The defendant could deny the promise to pay the plaintiff 5,000 denarii as a matter of fact or, if he admitted the existence of the promise, claim that he was no longer bound by it due to the presence of an exceptional circumstance. He might argue, for example, that the plaintiff had later informally agreed to absolve him of the debt. Pursuant to the ius civile such an informal agreement did not invalidate the initial promise, yet the praetor could grant the defendant a plea that thwarted the plaintiff’s action (exceptio pacti). In this event, the defendant’s defence would be incorporated in the formula as a further condition:

Let X be the judge. If it appears that the defendant ought to pay to the plaintiff 5,000 denarii and if there was no agreement between the plaintiff and the defendant that absolved the latter from the debt, let the judge condemn the defendant; if this does not appear, let the judge absolve the defendant.

As stated earlier, the formulae for actions bonae fidei encompassed the clause ex fide bona (in good faith) as a supplementary condition. For example, consider a case where the plaintiff claimed that through a contract of sale (emptio venditio) he sold the defendant an ox, but the latter failed to pay the price. In such a case, the plaintiff could be granted an action (actio venditi) based on the following formula:

Let X be the judge. Inasmuch as the plaintiff has sold the defendant an ox, which matter is the subject of this action, whatever it appears that the defendant in good faith ought to give to or do for the plaintiff, let the judge condemn the defendant to give or do; if it does not appear, let the judge absolve him.

6.3.1       The Course of the Formulary Procedure

Like the legis actio procedure, the procedure per formulam was divided into two distinct stages: before the magistrate (in iure) and before the judge (in iudicio, apud iudicem).

6.3.1.1     The Procedure in Iure

Prior to the commencement of the procedure, the plaintiff announced his intention to institute an action against the defendant (editio actionis). The announcement was issued extrajudicially and informally to notify the defendant of the claim and the type of intended action. Thus, it presented him an opportunity to settle the case out of court. In the next step, the plaintiff formally summoned the defendant before the court (in ius vocatio). A defendant refusing to appear with the plaintiff before the magistrate could be compelled to participate, even forcibly. This was averted if he could enlist someone to act as surety for him (designated a vindex) and hence ensure the defendant’s appearance in iure at a fixed later date.^[1242] In later times, the defendant could dispense with using a vindex and simply issue a formal promise (vadimonium) that he would appear in court.^[1243]

When the parties appeared before the praetor, the plaintiff made a declaration regarding the nature of his claim and the evidence he proposed to present (also referred to as editio actionis). He also requested the praetor to grant an appro­priate action (postulatio actionis). The praetor refused to furnish an action (denegatio actionis) if he concluded from the evaluation of the facts that the plaintiff’s claim did not sustain a proper cause of action or that the parties were not contractually capable.^[1244] However, he would indicate a willingness to grant an action (dare actionem) when he thought that legal protection should be provided.

The attention then focused on the defendant, who could either deny the plaintiff’s entire claim or request an amendment thereof by means of a praescriptio or exceptio.^[1245] If he acknowledged the claim (confessio in iure) the proceedings ended as the defendant was already considered condemned (confessus pro iudicato habetur).^[1246] This rule, established by the Law of the Twelve Tables, applied where the plaintiff’s claim involved payment by the defendant of a fixed monetary sum (aes confessum). However, if the plaintiff’s claim did not specify the debt, an immediate execution was impossible and proceedings then continued based upon an actio confessoria. This action applied where the defendant had already admitted liability and it was designed to determine the amount of money that he ought to pay the plaintiff. If the defendant remained passive (indefensus), he had to forfeit the object claimed (res indefensa) in the case of an actio in rem, or accept the possible attachment of his estate (following the praetor’s issue of a missio in possessionem) in the case of an actio in personam.

If the defendant elected to defend the case, the next steps were: the appointment of the judge; the formulation of the issues in dispute by means of an appropriate formula; and the praetor’s order to institute a iudicium. As previously indicated, the formula was usually selected from the list of formulae included in the edictum perpetuum. If no appropriate formula for the plaintiff’s action was located in the edict, the praetor could adapt a formula designed to cover cases of a similar nature (actio utilis, actio fictitia), or compose a formula for a new action (actio in factum).^[1247] The formula was then presented to the plaintiff (iudicium dare) who notified its contents to the defendant in the presence of the praetor. The in iure phase of the proceedings was completed by the announcement of the formula and its acceptance by the defendant (iudicium accipere).^[1248] This stage of the proceedings that finalized all the elements of the dispute was termed litis contestatio. An important consequence of the litis contestatio was that the judge could take into consideration the parties’ claims as formulated at the time of the litis contestatio. Subsequent events did not affect the nature of the case or the basis engaged by the judge to deal with it.^[1249] Moreover, after the litis contestatio the plaintiff was precluded from instituting legal proceedings against the defendant by using the same action in respect of the same facts or cause of action.^[1250] The litis contestatio also entailed the substitution of the plaintiff’s claim by a claim for pecuniary compensation, as the condemnation of the defendant under the formulary system always resulted in a monetary payment to the plaintiff.

6.3.1.2 The Procedure Apud ludicem or in ludicio

In this phase of the procedure, the judge (iudex unus, iudex privatus), or a panel of judges tried the case with a view to forming a verdict either accepting or rejecting the plaintiff’s claim as expressed in the formula issued by the praetor.^[1251] The parties were normally represented by competent advocates (oratores) who initially addressed the court by broadly outlining the merits of their case.^[1252] Before the commencement of the trial, the judge swore a solemn oath that he would exercise his functions lawfully and impartially. The necessary evidence was then presented and the parties or their representatives delivered arguments, which prompted the judge to issue a judgment.^[1253]

The parties' claims and the presentation of the evidence during the trial were limited to the issues as enumerated in the formula. The arguments were primarily concerned with facts: the plaintiff sought to prove the facts that supported his claim; the defendant either denied the factual basis of his opponent's claim, or accepted it but asserted that there were good reasons for recognizing an exception. Arguments might also focus on the interpretation of the law or the formula relating to the plaintiff's action. A party could argue, for example, that the law governing the issue should be accorded a broader meaning than the one usually adopted, or that the purpose of the law was different from that assumed by his adversary. Both oral and documentary evidence could be adduced, although the judge had a wide discretion in determining the manner of presentation and permissibility of evidence.^[1254] In the absence of direct evidence, the court occasionally relied on presumptions (praesumptiones) when the existence of certain facts could be logically inferred from other established facts.^[1255] However, these presumptions were defeasible as they could be refuted by further evidence. Although there was no settled rule pertaining to the onus of proof (onus probandi), it was generally recognized that the respective parties must prove their allegations.

After all the evidence was presented and the arguments delivered, the judge pronounced his verdict (sententia) usually in the presence of the parties or their representatives.^[1256] Prior to determining a case, a judge had to acquire the necessary legal knowledge on his own accord. If necessary, he could consult a council (consilium) of experts, but did not have to adopt their opinions. When a decision was not attained because the facts or the legal positions were vague or ambiguous, the judge could swear that ‘the case is not clear to him' (rem sibi non liquere). This entailed the nomination of another judge or the deferral of the decision until more evidence was obtained.^[1257] In deciding a case, the judge was bound by the wording of the formula that formed the basis of the relevant lawsuit. If the plaintiff had claimed that the defendant owed him something, the judge's verdict had to read either condemno (‘I condemn'), or absolvo (‘I absolve') if the claim proved unfounded.^{size=2 color=black face="Times New Roman">[1258]} When the judge decided on a divisory action (actio communi dividundo), the verdict had to read adiudico (‘I award').^[1259] A plaintiff would lose the case if he had elaborated in the intentio (i.e. the part of the formula containing his claim) a request for more than he was entitled (plus petere).^[1260] If he had requested less (minus petere), he was only entitled to what he had asked. In the latter case, the plaintiff could sue again for the remainder of the debt. However, the relevant action could not be granted by the same praetor as it could be blocked by an exceptio litis dividuae.^[1261]

The judge's decision generated an obligation for the unsuccessful party to execute it (iudicatum facere oportere)^[1262] A decision that adjudged an object to one party or, in a divisory action, to several people (adiudicatio) actually created new ownership rights on the adjudged property or share. It should also be noted that certain decisions entailed the condemned party enduring a diminution of his estimation among fellow-citizens (infamia). This occurred when the person condemned had committed an act involving personal turpitude, such as theft (furtum) or wilful fraud (dolus malus).^[1263]

The judge's decision was final. During the Principate era, a right of appeal (appellatio) against judicial decisions moulded by the per formulam procedure was finally recognized and was directed to the emperor or one of his officials. The purpose of an appeal was either the reversal of a decision or its modification.^[1264] The validity of a decision could be challenged by the unsuccessful party but a rejected challenge obliged him to pay double the amount specified in the original judgment (revocatio in duplum).^[1265]

6.3.1.3     Execution of Judgment

If the plaintiff’s claim was accepted, the defendant had to comply with the condem­natory judgment. He could comply voluntarily or, if resistant, be compelled to do so by means of a new action, known as actio iudicati. The plaintiff instituted the actio iudicati against the condemned defendant (iudicatus) on the expiry of a 30 day period after his condemnation by the judge (in the in iudicio phase) or his acknowledgment of the debt before the praetor (during the in iure phase). The actio iudicati was instituted in the same way as any other action: it was raised before the praetor (in iure) and a new formula was composed with a view to investigating the merits of the case. Before the case was referred to a judge for trial, the defendant had to provide security that the debt would be paid if he lost the case (satisdatio iudicatum solvi).^[1266] If the judge discerned that the previous condemnatory judgment had been justified, the defendant was condemned to pay twice the amount specified in the original judgment.

If the defendant was condemned at a trial for an actio iudicati or he admitted his debt before the trial ended, execution of the judge’s decision followed as a matter of course. Execution could be directed either against the condemned defendant person­ally or against his property. In the former case, the execution was conducted in the same manner as in the legis actio procedure: the praetor issued an order (decretum) that authorized the plaintiff to seize and imprison the defendant (duci iubere).^[1267] This form of execution was governed by the provisions of the Law of the Twelve Tables relating to the manus iniectio iudicati. However, the provisions regulating a creditor’s right to kill his debtor or sell him as a slave no longer applied. In normal circumstances, the condemned defendant worked off his debtunder the supervision of the plaintiff. The execution directed at the defendant’s person was gradually superseded by execution directed at his property engaging a praetorian decree known as missio in possessionem. After the lapse of a certain period (15 or 30 days, depending on the case), the condemned defendant was branded with infamia. This did not occur if he or another person acting on his behalf had meanwhile discharged the debt. Usually, the defendant’s property was then sold by public auction (venditio bonorum) and the plaintiff obtained payment from the proceeds of such sale.^[1268] When more than one plaintiff existed and the proceeds were not sufficient to cover all the claims, a proportional division of such proceeds was effected among them.

Following the venditio bonorum, the debtor's property was consigned to the highest bidder (bonorum emptor). However, the latter did not acquire full ownership before the completion of the usucapio period.^{[1269] [1270]} The buyer of the property could be granted an interdictum possessorium⁸¹ for obtaining possession of the property, as well as other actions for the payment to him of debts originally due to the insolvent debtor (actio Rutiliana, actio Serviana).^[1271] It should be observed that the insolvent debtor whose property was sold through a venditio bonorum was not always released from his obligations towards his creditors. A year after the venditio bonorum the creditors could initiate a new sale of any property the debtor had acquired in the interim, if their claims were not fully covered by the proceeds of the earlier sale.

As the venditio bonorum entailed grave consequences for the defendant, certain categories of persons were not subjected to this action. These included members of the senatorial class and persons construed by the law as incapable of regulating their own affairs (provided they had no guardian). If a person belonging to one of these categories became insolvent, his property was placed by the praetor's order under the control of an administrator (curator distrahendorum bonorum gratia)^[1272] The latter conducted the sale of the insolvent person's property by individual items (not as a whole) until sufficient money was obtained to satisfy the creditor's claim. This method of execution, termed bonorum distractio, did not result in infamia for the insolvent person. Finally, a lex lulia introduced in the era of Augustus recognized that a person who became insolvent through no fault of his own could seek permission by the praetor or the provincial governor to surrender his entire property to the creditors (cessio bonorum). This tactic averted the consequences (especially the infamia) that an execution by a venditio bonorum entailed.^[1273] If the debtor's request was accepted, he was entitled to a beneficium competentiae. This special remedy granted the debtor an opportunity to pay his creditors only as far as his means permitted.^[1274] The property (or part thereof) surrendered was sold at a public auction and the proceeds were divided among the creditors.

6.3.2      Extraordinary Praetorian Remedies

An array of extraordinary legal remedies was developed from the praetor's activities in his capacity as a jurisdictional magistrate. These were classified under four headings: stipulationes praetoriae, missiones in possessionem, restitutiones in integrum and interdicta.

6.3.2.1     Stipulationes Praetoriae

The praetor could impose a stipulatio (a verbal solemn promise) on one or both litigants in order to ascertain the normal progress of the trial and ensure certain behaviour from the parties by compelling them to assume the duty of performing or refraining from a specific action.^[1275] Moreover, such a compulsory stipulatio could be imposed on a person at the request (postulatio) of another to ascertain the latter's protection against certain eventualities.^[1276] Hence, the praetorian stipulations were categorised: stipulationes iudiciales were stipulations aimed at securing the parties' co-operation during a trial; stipulationes cautionales entailed the promise of an action to a person if certain circumstances occurred; and stipulationes communes were stipulations that related to both the above purposes.^[1277] If the promise embodied in the stipulatio was not fulfilled, an ordinary action lay against the contravening party. Moreover, non-compliance with the praetor's order or the absence of the party designated to assume the obligations imposed by the stipulatio could provoke a missio in possessionem in favour of his adversary.

6.3.2.2     Missiones in Possessionem

A missio in possessionem was a coercive measure applied by the praetor by virtue of his imperium. Pursuant to this measure, a person obtained possession of another person's property in terms of the whole estate (missio in bona) or some particular object (missio in rem). The praetorian decrees concerning missiones were issued either to ascertain the normal progress of a trial; or to secure the debtor's property for the satisfaction of his creditors; or to induce the debtor to assume a special obligation through stipulatio for security purposes if he refused to do so voluntarily. The legal situation of the party favoured by the missio decree varied from real possession to simple custody of the relevant property (or part thereof).

6.3.2.3     Restitutiones in Integrum

The restitutio in integrum was a legal remedy invoked when a person who had suffered unjust loss deriving from the strict application of the law requested the praetor to order a restoration of the previous legal position. It amounted to the setting aside of a legal act deemed otherwise lawful under the ius civile, on the basis that it would be unfair or inequitable to uphold the consequences of such legal act.

This remedy was granted by a praetorian decree (decretum) after the praetor evaluated the circumstances that prompted the claimant’s request (causa cognita). The best-known case that engaged this remedy pertained to the legal acts of minors^[1278] who had entered into transactions under conditions detrimental to their own interests. The circumstances where the praetor would grant a restitutio in integrum were enumerated in the edictum perpetuum.

6.3.2.4     Interdicta

The interdicta were the oldest and probably the most important legal remedies granted by the praetor.^[1279] An interdictum was a summary order issued by the praetor that prohibited a person from acting or persevering with an act, or demanded that he perform a certain act.^[1280] It was issued under certain circumstances in response to an application by a person who alleged that his right or rights were infringed, and was usually based upon a formula embodied in the praetorian edict. A great medley of rights could be protected in this way, such as the right of an individual or the public to enjoy their property without interference, or any right or interest with a private or public nature that was worthy of protection.^[1281] Evidently, an essential reason for the existence of the interdict was that it provided a swift and convenient means for permanently or temporarily resolving a legal dispute. However, one should note that an interdictum was effective only when the person against whom it was issued agreed to comply with the relevant order. If he failed to comply, the claimant could resort to the normal court procedure in order to verify or defend his right.

Three main categories of interdicts existed: the interdicta exhibitoria, interdicta restitutoria and interdicta prohibitoria.^[1282] An interdictum exhibitorium ordered a person to produce (exhibeas) a person (e.g. a child or a slave) or an object (e.g. a testament) he possessed, but did not impose the duty to deliver the person or object to the claimant. The interdicta restitutoria were concerned with the restoration (restitutas) of objects to their former condition, or the restoration of possession to a person who had been deprived of it. An interdictum prohibitorium operated to prohibit a person from a specific act, such as from hindering the claimant’s exercise of a property right. For instance, if the value of a house would likely be substantially diminished by some act of the person in possession of that house, a person claiming a property right over the house could request the issue of an interdictum prohibitorium forbidding such an act.^[1283]

6.4