History & institutions of civil procedure
on the example of ancient Roman law
Part II
Cesssio bonorum
• Voluntary forfeiture of assets by a debtor who is not at fault for his situation.
• No infamy!
• Debtor had the right to keep assets
necessary for subsistence
(beneficium competentiae)
Singular execution
• Initially a privilege from the beginning of the principate for families of senators.
• Distractio bonorum: a seperate curator sold individual elements of the debtor’s assets until creditors’ claims were satisfied
• No venditio bonorum or infamy.
• The praetor also used this form of execution against debtors who were not of age or mentally ill.
• Became common in the 2nd century.
Non-process remedies
• interdictum – an order to undertake or to cease a particular behaviour
• restitutio in integrum – an order to restore the status quo
• missio in possessionem – granting entry to a third party’s assets to an interested party through a praetor’s order
• cautiones – praetorian guarantee stipulations
Injunction
• Interdictum: an order to engage in a specific behaviour issued by a civil servant.
• Issued upon application of an interested party.
• If an injunction was not followed, it could serve as the basis for conducting a normal process.
Restitutio in integrum
• Restoration of the status quo. It served to remove the effects of an act of law, which most often was a valid legal document.
Situations justifying the provision of such a remedy:
1) acts undertaken in the face of a threat (metus) or deception (dolus malus)
2) insufficient maturity: people under 25 years of age (minores viginti quinque annis)
3) absence due to affairs of state
4) other justified grounds (iusta causa) – a general provision in an edict
5) for reversing the effects of an unjust verdict
Missio in possessionem
• Entering into possession of either the whole (missio in bona) or part (missio in rem) of an adversary’s property.
• Led to establishment of a praetorian pledge.
• Objective: to secure a thing – ex. in the case of an adversary going into hiding, securing a bequest for a legatee and for bringing a conceived but unborn descendent into possession of an inheritance.
• Also applied in processes for breaking the resistance of a defendent who did not want to enter into a dispute, and for initiating universal execution
Praetorian stipulations
• Contracts which praetors forced one party to conclude in certain situations upon an application by the other party.
• Ex. cautio damni infecti: a neighbour could avoid missio in bona if he pledged to cover damages in the event a building belonging to him collapsed.
Cognitio extra
ordinem (Cognitio
procedure)
Origin of the cognitio procedure
I. A practice of provincial governors during the republic.
II. Personal judicial activity of the first emperors.
III. Appointment during the early principate of praetors for: freedom, care, entrustment.
IV. Creation of many positions for prefects in imperial administration (praetorio, urbi, annonae, vigilum)
•
Characteristics of cognitio procedure
1. Single-phase procedure
2. Entirely public judicial activity
3. New written elements accompanying traditional spoken formulae
4. High court costs
5. Appeal
Course of the proceedings
1. Commencement:
Written, official action:
- from 5th century libellus conventionis (plaintiff) and response of the defendent (libellus conradictionis)
- use of a bond to secure a court
appearance and payment of
appropriate fees by the defendent
Initiation:
Proceedings could be conducted in absentia!
Examination of permissibility of
proceedings and qualification of
parties (or their attorneys) by the
judge.
2. Ascertainment of a dispute
• Presenting the positions of the parties:
narratio of the plaintiff and contradictio of the defendent.
• Litis contestatio: moment at which a dispute was ascertained and came under a court’s jurisdiction (lis pendens)
• The facts of the case as stated in w litis contestatio bound the judge in his verdict (debt, benefits, interest).
3. Evidentiary procedure
• The judge could conduct evidentiary procedure on his own initiatie (different from formulary procedure).
• Hierarchy of evidene: public documents and documents drawn up before a notary were given the greatest deference.
• From the times of Justinian, the testimony of witnesses could not be used to rebut a document.
Evidentiary procedure
• Testis unus testis nullus (from AD 334)
• The origin of a witness determined the weight given to his evidence. The testimony of honestiores was given precedence before that of humiliores.
The latter were required to swear an oath.
4. Verdict
• In writing
• Judgement given orally in the presence of the parties during a public session of court
• No requirement to justify a verdict
• Content of a verdict:
• monetary judgement
• release of the thing
• behaviour
Appeal
Submitted by a party dissatisfied with a verdict as a result of violation of procedural or substantive law (libellus apellationis or an entry into the record).
Justinian law provided for a uniform time limit of 10 days.
Submitted to the court that ruled in the case.
Appeal
Suspended the enforcement of the
verdict.
Proceedings before the higher court started from the beginning. The parties could cite new circumstances and submit new demands.
Appeal
Possibility for the situation of the appellant to be made worse (reformatio in peius).
Limitation: two appeals in a given
case
Appeal
Evolution of risk involved in an appeal:
• At first, the loser paid the winner four times the value of the thing in dispute
• Loss of half of one’s assets, two years of work in a mine or relegation (Constantine the Great)
• From Justinian – standard court costs
Appeal not allowed in case of:
• Verdict of emperor and prefect of praetorians
• Verdicts in amicable dispute resolution
• episcopalis audientia
• Verdicts in absentio and enforcement
procedure
Rescript procedure
Version of the cognitio procedure
Originated during the principate
The emperor or a high-ranking official
responded to a question from a judge as to the current state of the law
The judge was bound by the opinion in the rescript insofar as the facts of the case were those presented in the rescript
Enforcement in the cognitio procedure
Disappearance of personal enforcement
Gradual disappearance of universal enforcement against assets (venditio bonorum)
Singular enforcement becomes the rule (distractio bonorum); order of assets taken over: chattels, real property, receivables
