The structure of the formula

As was noted above, the formula was the written document by which the praetor nominated the private judge {iudex privatus) who was to try the case and authorised him to condemn the defendant if certain facts were proved or, if these facts were not proved, to absolve him.

The instructions to the judge contained in this document were carefully worded and adapted to the circumstances of the particular case. By contrast with the legis actio procedure, in which the relevant legis actio was selected by the plaintiff at his own risk, in the per formulam procedure the formula was issued by the magistrate at the request of the party concerned. A distinction was drawn between two types of formulae', formulae in ius conceptae and formulae in factum conceptae. The former were employed when the judge was called upon to determine the legal consequences of a factual situation already established - when he was required to decide, for example, if the plaintiff had suffered a legally recognised harm, or to determine the amount of compensation to which the plaintiff was entitled. A formula in factum concepta, on the other hand, was issued when the judge was called upon to decide whether the facts upon which the plaintiffs claim was based were true or not, as well as the legal significance of these facts.^{^[652]} A formula in factum concepta was incorporated into the praetor's edict in the form of an announcement that an action would be granted in certain cases not covered by the existing law.

According to Gaius, a formula consisted of four parts: the demonstratio, the intentio, the adiudicatio and the condemnatio (although the presence of all four elements was not always necessary).^{^[653]} The demonstratio was, the part of the formula setting out the factual situation upon which the plaintiffs claim was based.

This part of the formula always began with the word 'quod: inasmuch (e.g. 'inasmuch as the plaintiff sold a horse to the defendant...').^{^[654]} The intentio was the part of the formula in which the plaintiffs claim was stated.^{^[655]} It began with the phrase 'siparet' or 'quidquid paret'\ 'if it appears', 'whatever it appears'. Depending upon whether the object of the claim was clearly identified or not, an intentio could be certain {certa) or uncertain {incerta). For example, an intentio certa would read as follows: 'If it appears that the defendant ought to pay the plaintiff the sum of 1000 sestercii...' On the other hand, an intentio incerta would be worded in this way: 'whatever it appears that the defendant ought to pay to the plaintiff...' In actions relating to person {actiones in personam) the intentio contained the names of both the plaintiff and the defendant; in those relating to property {actiones in rem) only the name of the plaintiff was included. The adiudicatio was the part of the formula in which the judge was authorised to transfer the object that constituted the subject-matter of the dispute to one of the litigants. This was an essential part of formulae relating to actions concerned, e.g., with the division of common property, or the division of property among coheirs.^{^[656]} Finally, the condemnatio was the part of the formula in which the judge was given authority to condemn or absolve the defendant.^{^[657]} The condemnatio specified the amount of money which the defendant had to pay to the plaintiff, if the former was condemned, or authorised the judge to fix that amount at his discretion.^{^[658]} A formula always included an intentio and a condemnatio. Exceptionally, actions concerned with preliminary matters upon which a subsequent lawsuit depended {actiones praeiudiciales) did not include a condemnatio, but only an intentio. For example, a patron who wanted to sue his freedman for failing to carry out his duties could bring a preliminary action whose aim was to determine whether the defendant was in fact a freedman.

Such an action was not concerned with the condemnation of the defendant but with simply providing an answer to the question raised.⁸⁴ Besides the four parts mentioned by Gaius, a formula always contained a nomination of a judge and, sometimes, one or more defences and counter-defences raised by the defendant and the plaintiff respectively.^{^[659]}

Suppose that in a case brought before the praetor the defendant had promised by stipulatio, a verbal contract, to pay the plaintiff 3,000 denarii, but he failed to do so. In such a case the plaintiff could bring against the defendant an action known as condictio certae pecuniae. The formula for this action, as found in the praetorian edict, ran as follows:

Let X be the judge. If it appears that the defendant ought to pay to the plaintiff 3,000 denarii, let the judge condemn the defendant; if this does not appear, let the judge absolve him.

In this case the judge was asked simply to examine whether the plaintiffs claim was true or not. The defendant could oppose the plaintiffs claim as a matter of fact by denying that he had promised to pay to the plaintiff 3,000 denarii. Or the defendant could admit the existence of the promise but 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, at a later time, had informally agreed to absolve him of the debt. Although, under the ius civile, such an informal agreement could not negate the initial promise, the praetor could grant the defendant a plea in bar of the plaintiffs action (exceptio pact!)?^{^{size=2 color=black face="Times New Roman">[660]}} The defendant's defence (exceptio) would in such a case be included in the formula as a further condition.^{^[661]} Thus the formula would be worded as follows:

Let X be the judge. If it appears that the defendant ought to pay to the plaintiff 3,000 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.

Depending upon their period of operation, exceptions were divided into peremptory or perpetual and dilatory or temporary.^{^[662]} A peremptory (peremptoria) exception could be raised without limit of time (exceptio perpetua).

The party who, due to some mistake, failed to raise such an exception when the relevant formula was being prepared, could seek the insertion of his exception in the formula at a later time.^{^[663]} Dilatory or temporary defences, on the other hand, could be raised only within a limited period of time or under certain circumstances.^{^[664]}[665][666][667][668][669][670] For example, a defendant might raise a dilatory (dilatoria) exception in order to bar the plaintiffs action on the grounds that the action was brought prematurely, i.e. before the passing of the prescribed period of time (dilatoria ex tempore)^ or on the grounds that the person who brought the action was legally incapable of doing so, e.g. because the action had been brought by a representative who had not been appointed according to law (dilatoria ex persona)?² In such a case the plaintiff could, before the conclusion of the in iure phase of the proceedings, withdraw his action and bring it again later, i.e. after the prescribed period of time had passed, or after the impediment relating to the capacity of his representative had been removed. If the plaintiff did not withdraw his action, a dilatory exception, like a peremptory exception, if accepted, resulted in the rejection of his claim.⁹ Exceptions were divided, further, into exceptiones civiles and exceptiones honorariae. The former were based on the ius civile?⁴ the latter were granted by the praetor under certain circumstances and were included in the edictum perpetuum?' Of the exceptiones honorariae probably the most important was the exceptio doli, based on the claim that the plaintiff had acted fraudulently (dolo)?⁶ The term exceptiones utiles referred to exceptions which had been formulated by the praetor on the basis of other exceptions found 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 any of the exceptions already recognised.^{^[671]}

Now, when an exception was raised the plaintiff could deny the facts giving rise to the defendant's defence, or raise his own counter-defence against it.

For example, he might deny the defendant's claim that the plaintiff had promised not to bring an action against him by asserting that this promise had subsequently been revoked, or was limited to a given period of time. The plaintiffs counter-exception, termed replicatio, was also inserted into the relevant formula as a further condition.^{^{style='font-size: 11.0pt;font-family:"Times New Roman",serif;color:black'>[672]}} To the plaintiffs replicatio the defendant might again respond by raising a further exceptio, now called dublicatio, and so on until each party's case was fully stated.^{^[673]}[674] All the exceptions and counter-exceptions were inserted into the relevant formula}⁰⁰ However, the use of exceptiones appears to have become less frequent as a result of the proliferation of the actiones bonae fidei, i.e. actions in relation to which good faith was explicitly taken into consideration.^{^[675]}

As was noted before, the formulae for actions bonae fidei included the clause ex fide bona (in good faith) as a further condition. Take for example a case in which the plaintiff claimed that, by a contract of sale {emptio venditio), he sold the defendant a horse and that the defendant did not pay the price. In such a case the plaintiff could be granted an action {actio venditi) based on the followingformula-.

Let X be the judge. Inasmuch as the plaintiff has sold the defendant a horse, 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.

Actiones bonae fidei were the actions relating to real contracts (except the mutuum)'⁰² and to consensual contracts, i.e. contracts based on mere agreement (sale, hire, partnership and mandate). Whereas all other contracts required observance of certain formalities (set words, writing or delivery of a thing), consensual contracts were binding as soon as the parties agreed on the essential elements of their contract.^{^[676]}[677] Contracts in which the obligations of the parties were determined according to the requirements of good faith began to play an important part in economic life during the later republican period.

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

The structure of the formula

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