The legis actiones Sacramento, per iudicis postulationem and per condictionem

The legis actio Sacramento was available in any case for which no other legis actio was provided by law.^{^[433]} A distinction was drawn between legis actio sacramento in rem and legis actio Sacramento in personam.

In the legis actio sacramento in rem the plaintiff asserted his ownership of a thing, or his control over a person (e.g. on the basis ofpartia potestas). By a legis actio sacramento in personam the plaintiff sought to force the defendant to fulfil an obligation resulting from a transaction or the causing of harm. A common requirement of both was that, at the beginning of the proceedings, the parties had to deposit a certain amount of money with the praetor as a pledge (sacramentum). According to a provision of the Law of the Twelve Tables, the amount that had to be deposited was five hundred asses if the value of the object in dispute exceeded one thousand asses, and fifty asses if the object was valued at less than a thousand asses.^{^[434]} The judge who tried the case had to decide which of the two pledges, the plaintiffs or the defendant's, was the one supporting a legitimate claim (sacramentum iustum). The pledge of the party whose assertion was found to be untrue (sacramentum iniustum) was forfeited to the public treasury (aerarium) and was used to cover the cost of religious ceremonies. According to Gaius, this amounted to a form of punishment (poena sacramenti) inflicted on the party who, without adequate justification, had initiated legal proceedings or defended himself in a court of law.^{^[435]} As the word 'sacramentum' suggests, the legis actio sacramento had its origins in sacral law. In the early archaic period the parties to a dispute had to take an oath that their assertions were true; the party whose assertion was found to be untrue was declared an outlaw (sacer) and was regarded as being excluded from divine and human protection.

In later times the word 'sacramentum' came to denote a deposit of money in civil suits. The forfeiture of the sacramentum was regarded as a form of sacrifice to the gods (piaculum) aimed at expiating the crime of perjury committed by the party whose assertion was proved to be false.^{^[436]}

In a case involving a legis actio sacramento in rem the object in dispute or, if that was immovable, a small part of it had to be brought before the praetor.^{^[437]} Both the plaintiff and the defendant then asserted their right of ownership over the thing by performing certain symbolic gestures and pronouncing certain words.^{^[438]} These formalities marked the beginning the formal contest between the parties (conserere manum). A formal dialogue between the parties then followed during which the plaintiff asked the defendant to state the cause (causa) upon which his denial of the plaintiffs claim was based (contravindicatio). The defendant's claim was then challenged by the plaintiff.^{^[439]}[440] At this point the praetor nominated the judge (iudex) who was to sit in judgement on the case and, at the same time, designated the party in whose possession the object in dispute was to remain until the conclusion of the trial. The party who was given possession of the thing had to give guarantees that he would make over the thing to his adversary if the latter won the case (praedes litis et vindiciarum)™ If the subject-matter of the case was a person's freedom, the person whose freedom was at stake remained free until the completion of the proceedings. After the nomination of the index, the praetor called upon those present to act as witnesses to the fact that the procedure had been conducted in a proper manner and that all the formal requirements had been met. At this point the in iure phase of the proceedings came to an end (litis contestatio). ^{^[441]} Under a lex Pinaria, passed probably in 346 BC, there had to be a thirty days interval between the termination of this phase and the appointment of a iudex by the praetor.^{^[442]} After the litis contestatio the parties could not alter their claims.

Very little is known about the way in which the legis actio sacramento in personam was conducted but, from the information available to us, it appears that the relevant procedure was in general similar to that of the legis actio sacramento in rem.^{^[443]}

The legis actio per iudicis postulationem was concerned with claims arising from verbal contract (sponsio)^{^[444]}[445] and with disputes relating to the division of an inheritance among co-heirs (actio familiae erciscundae). Under a lex Licinnia (of unknown date) the scope of this legis actio was extended to cover cases involving disputes between co-owners relating to the division of common property (actio communi dividundo)⁸² This legis actio took its name from the formal request (postulatio) by which the plaintiff asked the praetor to appoint a iudex. When the parties appeared before the praetor, the plaintiff stated the cause of his action (e.g. ex sponsione) and called upon the defendant to reply. If the defendant denied the plaintiffs claim, the latter asked the praetor to appoint a iudex or an arbiter to examine the case and to pass judgement. It seems more likely that the praetor appointed a iudex in cases involving actions ex sponsione and an arbiter in disputes among co-owners. In contrast with the procedure followed in the legis actio sacramento, in the legis actio per iudicis postulationem the praetor proceeded to the appointment of the iudex or arbiter immediately following the plaintiffs request (the rule that there had to be a thirty days interval between the litis contestatio and the appointment of the iudex wees, not followed in this case).

The legis actio per condictionem^{^[446]} was introduced after the enactment of the Law of the Twelve Tables at a time when Roman commercial life was at a more advanced stage of development.

This legis actio was created by two legislative enactments of unknown date, the lex Silia de condictione (probably late third century BC) and the lex Calpurnia de legis actione per condictionem (probably early second century BC). The former statute covered claims involving a fixed sum of money (certa pecunia); the latter made the relevant legis actio available for claims involving a specific object (certa res).^{^[447]} In a legis actio per condictionem the plaintiff appeared before the praetor and made a formal statement that the defendant owed him a certain amount of money or an object. He then summoned the defendant to acknowledge or deny his claim. If the defendant denied the plaintiffs claim the latter 'gave notice'^{^[448]} to him to appear before the praetor after thirty days in order to have a iudex appointed.^{^[449]}[450][451]

Thirty days after the completion of the in lure phase of the proceedings, the praetor nominated the iudex or arbiter who was to try the case. The parties then called upon each other to appear before the judge after three days (comperendinum diem)** According to a provision of the Law of the Twelve Tables, a trial could be postponed only if a party fell seriously ill (morbus sonticus), or if a party was engaged in another trial involving a foreigner (status dies cum hoste)^ In later years additional reasons for the postponement of a trial were introduced.^{^{New Roman",serif;color:black'>[452]}}[453]

At the beginning of the trial a statement of the case was made by both parties (causae coniectio or collectio) '.^>{ This was followed by the presentation of the arguments by which the parties supported their claims (causam perorare). Then evidence was adduced, both oral (testes) and documentary (tabulae, epistulae, codices, rationes). Oral testimony was regarded as particularly important.

The Law of the Twelve Tables provided that if a person before whom a transaction per aes et libram ^{^[454]}[455] had taken place refused to appear as a witness, he was to be declared incompetent (improbus) to act as a witness in similar transactions in the future as well as to summon others to act as witnesses for him (intestabilis)^ Before they gave evidence, witnesses had to take an oath. Evidence was given only in relation to matters of fact, but how much weight was to be given to the evidence presented was entirely at the judge's discretion. In general, it was assumed that the burden of proof lay with the plaintiff.

After all the evidence had been presented and arguments heard the judge pronounced his verdict (iudicare) in the presence of both parties. In many cases, before pronouncing the verdict, the judge sought the opinion of an advisory body (consilium) appointed by him. With regard to the legis actio per iudicis postulationem, the legis actio per condictionem and, probably, the legis actio Sacramento in personam, the judge's verdict consisted in the condemnation (condemnatio) or the exoneration (absolutio) of the defendant. By contrast, in the legis actio sacramento in rem, the verdict simply identified the party to whom the thing under dispute should belong. In cases involving an actio in personam, the party who lost the case (iudicatus) was subject to a legis actio per manus iniectionem - one of the two legis actiones discussed below.

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The legis actiones Sacramento, per iudicis postulationem and per condictionem

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