History & institutions of civil procedure
on the example of
ancient Roman law
Self-help
• defensive -
Self-defense
• goal: to maintain status quo
• offensive
• Goal: to change
status quo
Self-defense
• Always tolerated in Rome!
• Vim vi defendere omnes leges omniaque iura permittunt - "All law allows for force to repel force" (Paulus)
• Vim vi repellere licet - "Force may be met
with force" (Cassius)
Limits of self defense
• It could only be used in defense, not for getting revenge
• Defense against a force that is:
• serious
• direct
• illegal
Offensive self-help
• A threatening phenomenon which the state fought against!
• Examples:
• Leges Iuliae de vi publica et privata (17 BC) against armed activities violating the law and order of the state
• Decretum divi Marci
Historical development of the procedure
• Legis actiones
: from archaic times until the end of the republic (until 17 BC).• Formulary procedure:
initially applied only in disputes between foreigners and mixed disputes (from the 3rd century BC); from Lex Aebutia (mid-2nd century) it was also used in disputes between citizens; went out of use at the beginning of the dominate.• Extraordinary procedure:
from the beginning of the principate, first as a procedure for claims not covered by the standard procedure and in provinces where the formulary procedure did not take hold.General characteristics of procedure
• Two-phase in the legis actio and formulary procedure
I. in iure: preparatory phase before the
jurisdiction officer (praetor, provincial
governer), who determined the admissibility
of the procedure, selected a judge (with the
parties’ input) and established the mode of
further proceedings.
General characteristics of procedure
• Two-phase in the legis actio and formulary procedure
II. apud iudicem (in iudicio): decisive phase before a judge or panel of judges;
encompassed evidentiary proceedings
and issuing the verdict.
Jurisdiction
• Iurisdictio (from ius dicere – to declare what the applicable law is)
Types:
1) Contradictory (procedural): exercised in the first phase of the procedure (in iure);
consisted in granting relief in the form of
an action, which meant authorization for a
judge(s) to decide a case
Jurisdiction
2) Non-contradictory (non-procedural):
assistance of the magistrate in performing juridical acts, ex. :
- in iure cessio
- manumissio vindicta
- adoption of a person alieni iuris
- appointing a guardian
Private judges
• Individual judge (iudex unus)
• Private individual (iudex privatus)
• Summoned to rule in a specific case
• Selected from album iudicum selectorum
established by praetors
Parties
Actor (is qui agit), petitor – plaintiff/complainant
Reus – defendant/respondent
Capacity to sue
• Capacity to participate in proceedings
• Capacity to make declarations of will leading to a defined effect in the proceedings
• It was not possessed by:
– immature persons – mentally ill persons – slaves
– women (until the beginning of the dominate)
– children under paternal authority
Standing
The right to take part in a
specific case in the role of the
plaintiff (active standing) or the
defendant (passive standing)
Contradictory proceedings
• Procedure was based on the conflicting statements of the parties.
• Principle Ne eat iudex ultra petita partium.
– the juge is bound by the demands of the parties.
• The parties themselves decided about the
fate of the procedure and of evidentiary
submissions.
Location of the procedure
• During the Republic the principle of transparency was in effect; both phases of the procedure were held in the centre of the city in open public squares (comitium, forum).
• During the imperium, the courts
functioned in closed spaces (basilicae,
auditoria, secretaria).
Jurisdiction of the court (forum)
• Every case should be heard in the appropriate forum, that is, in the proper court
Types of jurisdiction:
1)substantive : regulated by the division of competences among authorities providing legal protection
2)locality: actor sequitur forum rei ; the
plaintiff should bring the action in the place
appropriate for the defendent’s place of residence
Court costs
• Legal aid was free during the republic and the principate!
• Changes occured during the dominate!
• From the 4th century AD, many high fees
were payable to the state treasury and court
personnel; every official act was subject to a
seperate fee. A deposit was paid in advance
by the plaintiff, while the costs were borne
by the losing party.
Legis actio
Legis actio sacramento (procedure with a bond)
• The oldest form of proceedings
applied on the broadest scale. Two
versions of it were used.
Legis actio sacramento in rem
• One of the means of demonstrating authority
over things and people (ex. children). A
procedure held before the magistrate, known
from Gaius’s Institutions, took place with the
participation of both parties: the plaintiff
(actor) and the defendant (reus). The person
or object which the dispute concerned was
also brought to court, or a symbol of it (a bit of
soil).
• The plaintiff – demanding an object (ex. A slave) – equipped with a spear (vindicta or festuca) recited a ceremonial formula in which he claimed to be the owner of the thing according to the law of the Quirites, and confirmed this by the symbolic gesture of placing the spear on the thing under dispute.
• The defendant – the current possessor of the thing – repeated the same words and performed the same gestures.
• When both parties declared their authority, the
praetor ordered them to release the thing,
which then symbolically ceased to be the
property of either party.
• Then, the plaintiff asked his opponent about the basis of his claim of ownership,
• and when the defendant responded that he was exercising his right,
• the plaintiff called upon him to pay a bond (sacramentum), and accusing him of making a baseless claim.
• The defendant also demanded the plaintiff
pay the same bond.
Bond (sacramentum)
• It was quite high, 50 asses (equivalent of 5 sheep) for objects worth under 1000 asses, while for objects worth over 1000 asses the bond was 500 asses (equivalent of 5 bulls).
• Sacramentum went to the state treasury!
• When establishing the bond, the praetor
entrusted temporary possession of disputed
object to one of the parties who obliged to return
the thing itself as well as its possible benefits.
Legis actio sacramento in personam
• Served to pursue claims resulting from obligations, ex. from those responsible for personal injury or injury to property, or from debtors who did not perform their obligations under a contract.
• The plaintiff ceremonially declared that a
debt existed, while the defendant
ceremonially denied that it did. Next, the
parties called upon each other to pay a
sacramentum.
Legis actio sacramento in personam
• After the procedure, the judge ruled whose claim was justified and whose was not, and in deciding on the bond, he decided on the substance of the dispute.
• The most long-lasting effect of the application of
legis actio sacramento was the introduction of
the categories of actiones in rem and in
personam, which much later became one of the
grounds for separating property law from the law
of obligations.
Legis actio per manus iniectionem (procedure by laying of a hand)
• Primarily for the enforcement of a judgement against a debtor who had already been sentenced.
• Also used for a debtor treated as though he
had been sentences, such as one obliged
by a formal loan nexum.
Legis actio per manus iniectionem
• The victorious plaintiff waited 30 days from
the issuing of the verdict. If the defendant
did not carry out the judgement, the
plaintiff brought him before the magistrate,
where he placed his hand on him and
recited a strictly-worded ceremonial
declaration of the basis for his action.
Legis actio per manus iniectionem
• If the debtor still did not pay, and failed to present a guarantor (vindex) who would lift the arm of the plaintiff, then the praetor placed the debtor under the authority of the plaintiff (addictio).
• In the event of the lifting of the plaintiff’s
arm (manum depellere), the guarantor
risked losing twice the value of the initial
judgement.
Legis actio per manus iniectionem
• The plaintiff placed the debtor in a private prison and held him for 60 days, feeding him in the manner proscribed in the Law of the Twelve Tables (one pound of grain per day).
• During imprisonment, the plaintiff was to bring
the defendant out to the forum three times in
order to announce the existence and the amount
of the debt. If no one declared readiness to pay
it for the debtor, the plaintiff had the right to kill
him.
Legis actio per manus iniectionem
• Later legislation during the Republic reduced the severity of this enforcement by allowing for sale of the debtor into slavery across the Tiber river, or working off the debt.
• The debtor could also remove the
plaintiff’s hand himself. However, by doing
so he entered into a new dispute and
risked having a judgement of twice the
original amount entered against him.
Formulary
procedure
Historical development of the formulary procedure
a)beginning: a response to the expansion of the Roman state and the need to regulate legal relations between citizens and foreigners, which was not guaranteed by the legis actio
b) Formal introduction: lex Aebutia (ca. 130 BC) c) high point of the procedure: the time of
August
d) went out of use: end 3rd century
e) formal derogation: constitution of AD 342
The formulary procedure and legis actio
Similarities:
• Two-phase procedures
• Phase before private judge
Differences:
• Flexible praetorial formula compared to the narrowly- defined actiones (source of the procedure was not statute, but rather the power of the praetor)
• Reduced formalism in the formulary procedure
• Expanded scope of potential participants
Stages of the formulary procedure
I. proceedings in iure
Linking element – litis contestatio
II. proceedings in iudicio
Praetorian formula
Written instructions issued by the praetor to the private judge on how to proceed in a case. The formula was binding on the private judge and constituted the result of the first phase of proceedings.
The formulae were the object of interest of both
practicioners (who examined the formulary
portion of the edict) and theoreticians (many
works on the formulae and creating new
models).
Construction of a praetorian formula
Standard portion
Intentio
(declaration )
Demonstratio (presentation)
Condemnatio (judgement)
Adiudicatio (adjudication)
Extraordinary portions
Exceptio (procedural
objections)
Replicatio (response to an objection)
Praescriptio pro actore
(reservation)
Nominatio
• Appointing a judge in a direct statement, e.g.: "Mark shall be the judge"
• Contains the demand of the plaintiff.
• Present in all formulae.
Demonstratio
Description of the facts of the case
Condemnatio
The portion in which the praetor gave the judge the
authority to rule or to discharge.
Adiudicatio
• Adiudicatio appeared as a portion of the formula only in actions concerning the division of jointly- held assets.
• The praetor gave the judge authority to adjudicate, meaning to award the parties to the dispute what was due to them.
• The main idea was to determine the essence of
rights, not only that someone had rights!
Exceptio
• Placed in the formula in the interests of the defendant.
• A procedural plea which, when successfully
entered by the defendant, neutralized the
plaintiff’s demand.
Temporary and permanent pleas
• A classification that remain relevant to the present time!
• Permanent (peremptoriae), in other words, extinguishing.
• Temporary (dilatoriae), in other words, delaying.
They only serve to temporarily delay the pursuit
of a claim.
Action (actio)
Actio – in Celsius’s opinion, the right to pursue in court what one is rightfully owed.
When a given person was entitled to actio – there was the right and correlated potential to protect that person’s own interest in court proceedings.
As Roman law developed, various
classifications of suits appeared based on their
properties.
Most important categories of actiones
• actiones in rem – actiones in personam
•actiones bonae fidei – actiones stricti iuris
•actiones perpetuae – actiones temporales
Other types of actiones
• actiones praeiudiciales
• actiones utiles
• actiones noxales
• actiones populares
Possible responses by the defendant
1) indefensio
Not offering a defense. Required the cooperation of the parties until the end of the in iure phase.
• for actiones in rem there was a choice whether to enter into a dispute; a passive defendant lost possession of the thing in question
• for actiones in personam it was mandatory to enter into a dispute; defendant’s resistance was broken by allowing the plaintiff to start enforcement
2) negatio
• Defense by negation placed the burden of proof on the plaintiff
(Reo negante actori incumbit probatio)
• Groundless negation (infitiatio), however, led to judgement in duplum
3) exceptio
• Defence by way of a procedural plea.
• The defendant did not argue the existance of the plaintiff’s claim, but rather tried to neutralize it by demonstrating some circumstances, such as the debt was the result of a fraud (exceptio metus)
• Excipiendo reus fit actor. = it shifted the burden
of proof from the plaintiff onto the defendant
Confirmation of the dispute (litis contestatio)
• After preparing the formula, the praetor
handed it to the plaintiff, who then served
it to the defendant. The parties summoned
witnesses and read the formula aloud to
them. The dispute was confirmed (litis
contestatio). This was a consolidation of
the two phases of the procedure.
Effects of litis contestatio
• Litis contestatio led to the dispute handed over to the jurisdiction of the court: res in iudicium deducta (in short: lis pendens).
• A new procedure concerning the same claim was not possible, expressed in the legal rule: Bis de eadem re agere non licet
= the same claim may not be pursued in
two procedures (in short, Ne bis in idem).
apud iudicem phase
1) Evidentiary proceedings
The judge restricted himself only to the evidence presented by the parties.
Rule: Ei incumbit probatio qui dicit, non qui negat.
Forms of evidence: witness, documents, expert opinions, inspections, interview of the parties.
The judge had full freedom in assessing the
evidence.
Verdict
• Declaratory: if no new legal situation was created.
• Constitutive: if a new legal situation arose.
• The judge was obliged to issue a verdict!
• This obligation could only be avoided when the judge declared under oath that the case was unclear for him
• Terms: sententia or iudicatum
• A matter concluded with a verdict: res iudicata
• The judge could neither change nor correct his verdict!
• The verdict could be found invalid due to exceeding the authority given in the formula.
Procedure in case of an improper verdict in a formulary procedure
• questioning the legitimacy of the enforcement action
• revocatio in duplum – pursuing a claim for twice the vvalue of the previously adjudicated sum
• intercessio – objection of an equal or higher
magistrate
Procedure in case of an improper verdict in a formulay procedure 2
• restitutio in integrum – non-procedural annulment of the effects of a procedure by the praetor
• civil liability of a careless judge (iudex qui litem suam fecit)
• criminal liability of a corrupt judge
Enforcement in the formulary procedure
• Universal enforcement form assets against the entirety of the debtor’s estate was the dominant mode.
• Commencement: actio iudicati
• 30 days past due, then in ius vocatio
• If the legitimacy of the enforcement was
called into question, the verdict’s formal
legitimacy was again tested before the
praetor.
Universal enforcement from assets
• Missio in bona – decision of the praetor transfering the entire estate of the debtor to the creditor
• Proscriptio – public announcement fo enforcement
• Objective: to secure the assets from being separated and to inform other creditors of the opening of proceedings
• Those who did not participate could open new enforcement proceedings after one year (personal as well)
