The Legis Actio Procedure

The legis actio procedure (literally, an action based on the law) is the earliest form of Roman legal procedure known to us. Its origin is not quite clear.

Whenever a Roman citizen wished to raise a dispute and institute legal proceedings against another, he first had to approach a magistrate endowed with the power of iurisdictio. This magistrate would determine whether the case was sufficiently strong for referral to a judge for trial and, if so, stipulated the appropriate procedure. This formed the first phase of the legis actio proce­dure, called in iure, as the magistrate declared the law (ius) applicable to the case.^[1187] However, the case was only heard if both the plaintiff and the defendant were present at the opening of the proceedings in iure.^[1188] According to the Law of the Twelve Tables (T.

The use of a formula with the solemn enunciation of prescribed formal words to request a magistrate to exercise his power on one's behalf was an ancient, deeply rooted practice among the Romans, who attached great importance to the efficacy of ceremonial acts in most communal activities. As the legis actio was essentially a ritual any mistake, even a trivial one, was necessarily fatal. This is illustrated by a case reported by the jurist Gaius where a man sued another for chopping down his vines. The aggrieved party lost his suit because he used the words ‘vines' (vites) instead of ‘trees' (arbores) as prescribed by the Law of the Twelve Tables (T. 8. 11.).^{[1190] [1191]} As previously elaborated, the pontiffs had knowledge of the formulas a magistrate would likely accept as efficacious. It was a customary practice to consult the pontiffs for some formula even before the legis actio became a well-defined and established system.

Five different types of legis actiones are mentioned in the sources: the legis actio sacramento; the legis actio per iudicis arbitrive postulationem; the legis actio per condictionem; the legis actio per manus iniectionem; and the legis actio per pignoris capionem? The first three were applied to resolve a dispute, whilst the last two were used to enforce the execution of a judgement.

The legis actio sacramento (action in the law by oath) was the earliest and most important of the legis actiones.

In a legis actio sacramento in rem the property in dispute (or a token of the object if it was immoveable) was presented before the magistrate and each party asserted ownership over it by performing certain symbolic gestures and pronouncing prescribed formal words. An altercation then ensued between the parties over their respective titles, and each party supported their assertions by issuing an oath with a monetary sum staked on the outcome (sacramentum).^[1196] An important note is that an issue was not created by assertion and denial, but by the two parties asserting contradictory rights. The magistrate then produced an interim decision assigning possession of the disputed object to one of the parties and demanding security from him.^[1197] After establishing the question at issue (litis contestatio), the iudex was nominated to try the case and the in iure phase of the proceedings was thus completed.^[1198]

The legis actio per iudicis arbitrive postulationem (action in the law by applica­tion for a judge or arbiter) was employed in specific cases where a law had authorized it and was applicable when a claim emerged from a verbal contract (sponsio/stipulatio)^[1199] or it was necessary to institute an action for the division of a common estate or inheritance (actio familiae erciscundae).

When the parties appeared before the magistrate, the plaintiff stated the cause of his action (e.g. ex sponsione) and called upon the defendant to reply. If the defendant denied the plaintiff’s claim, the latter requested the magistrate to appoint a iudex or an arbiter to decide the case. It seems that a iudex was appointed in cases involving claims invoked by verbal agreements, whilst cases concerned with the division of joint property were determined by an arbiter. In comparison to the legis actio sacramento, the legis actio per iudicis arbitrive postulationem had the advantages of relative simplicity and no risk to the unsuccessful party of forfeiting 17

a sacramentum.

The legis actio per condictionem was introduced by the lex Silia (c. 204 bc) for actions directed at the recovery of a fixed sum of money (certa pecunia). It was extended by the lex Calpurnia (passed probably in the early second century bc) to encompass claims involving other definite objects (aliae certae res).^{[1200] [1201]} As in the case of the legis actio per iudicis arbitrive postulationem, its application was restricted to cases stipulated by legislation. However, the condictio as such was an abstract action as the formal words employed in respect thereof omitted reference to a cause of action. The condictio was a personal action that could be employed in a variety of cases, such as mutuum,^[1202] stipulatio certa^[1203] contractus litteris (written contract) and furtum (theft). It also applied to cases of unjust enrichment when one person dishonestly acquired a benefit from another's property (ex iniusta causa) or without any legal justification (sine causa).

In a legis actio per condictionem the plaintiff declared his claim (i.e.

In contrast to the proceedings in iure, no formal rules governed the second phase of the procedure that occured before the iudex (apud iudicem, in iudicio).^[1205] During this phase the judge (iudex) conducted the trial based on the evidence produced within the frame established by the magistrate.^[1206] The judge had no restriction in assessing the evidence and adhered to only certain general rules (for example, it was recognized that the plaintiff assumed the burden of proof).^[1207] After observing the litigants’ pleas (causae coniectio or collectio), hearing their witnesses and advocates,^[1208] and investigating the matter, he pronounced a verdict orally in the presence of both parties. Before delivering his judgment, the judge could consult anyone he chose or seek the advice of a council appointed by him (consilum) when necessary that was usually composed of persons with legal knowledge. No appeal to a higher authority against the judge’s verdict was possible, because by accepting the iudex through the litis contestatio both parties agreed in advance to submit to his verdict.^[1209]

The legis actio per manus iniectionem (action in the law by the laying on of a hand) differed from the aforementioned legis actiones that were designed for dispute resolution. It applied to the execution of a judicial decision with a focus on the person of the judgment debtor and not his property.^{[1210] [1211]} According to the Law of the Twelve Tables (T 3.

The legis actio per pignoris capionem (action in the law by the seizure of a pledge) was also designed for the execution of a judicial decision. However, it was dissimilar to the manus iniectio as it was a remedy directed at the property of the debtor.^[1215] This action enabled a creditor in specified cases to obtain a pledge from the property of the debtor without applying to a magistrate for a judgment.^[1216] In the cases where this form of execution applied, the creditor had to adopt a prescribed procedure that engaged a set form of words (certa verba) declared in the presence of witnesses; thus, the relevant procedure was regarded as a form of statute process.^[1217]

The legis actio procedure gradually fell into disfavour, as its archaism and exaggerated formalism rendered it unsuitable for the needs of a rapidly advancing society. The progressive complexity of social and economic life induced the praetor to devise new forms of action and new procedural formulae to accommodate ad hoc controversies arising from novel socioeconomic situations. This prompted the development of a flexible form of procedure, known as formulary (per formulam) procedure, which predominated during the late Republic and the Principate. After the formulary procedure acquired legislative recognition by the lex Aebutia (second century bc), a plaintiff could choose whether to use the new or the old legis actio procedure. Although most claimants selected the formulary procedure because of its deriving advantages, the two types of procedure were used conjunctively until the end of the first century bc when the legis actiones were formally abolished by the leges Iuliae iudiciorum publicorum et privatorum of Augustus (c. 17 bc).^[1218]

6.3