Roman Civil Procedure: From Legis Actiones to Extraordinary Procedure

I. Legis Actiones

This archaic procedure allowed for self-help and private revenge while also incorporating a rigid, formal ritual. It consisted of two phases:

A. In Iure (Before the Magistrate)

This phase was steeped in formalism. The process began with a summons, a form of moral intimidation compelling the defendant to appear. Both parties would agree to return on another day for litigation. The legis actiones included:

1. Actio Sacramenti (Action by Oath): A general procedure used for concrete claims where the law did not provide a specific action. It could be in rem (to protect property rights) or in personam (to protect debt claims).
2. Actio per Iudicis Postulationem (Action at the Request of the Judge): Used to claim debts arising from stipulatio (formal promise) or for the division of inheritance.
3. Actio per Condictionem (Action by Formal Notice): For debt consisting of a specific sum.

The in iure phase concluded with the litis contestatio (joinder of issue).

B. Apud Iudicem (Before the Judge)

This phase took place before a judge or jury. It involved oral statements from each party, the presentation of evidence, and finally, the judge's decision (sentence). If the sentence was not fulfilled, it could be enforced through execution proceedings, usually involving monetary compensation.

Actio per Pignoris Capionem (Action by Taking a Pledge): This action applied only to specific debts. Unlike other actions, it did not involve proceedings before the magistrate but rather the seizure of the debtor's assets until the debt was paid.

II. Formulary Procedure (2nd-3rd Century BC to 2nd Century AD)

This procedure was more flexible. The in iure phase involved the drafting of a written formula by the judge (praetor).

A. In Iure

The citation was still oral. The defendant was obligated to appear or send a representative. The plaintiff presented their claim freely, and the defendant responded with their arguments or exceptions that could limit the claim's effectiveness.

The Formula:

1. Nominatio Iudicis (Appointment of the Judge): Named the judge or judges.
2. Demonstratio (Statement of Facts): Not always present, it provided the factual background of the case.
3. Intentio (Claim): Stated the plaintiff's claim, which could be certain (specific amount) or uncertain (general nature).
4. Condemnatio (Direction to Condemn): Ordered the judge to convict or acquit based on the evidence presented.
5. Adiudicatio (Award): Allowed the judge to fairly award any right to the litigants.

Extraordinary Parts of the Formula:

1. Praescriptio (Limitation): Used to delimit the subject of the litigation.
2. Exceptio (Defense): A legal process in favor of the defendant that did not dispute the claim but limited its effectiveness. Exceptiones could be dilatory (postponing the action) or peremptory (completely undermining the action).
3. Replicatio (Reply): Occurred when the plaintiff responded to the defendant's exceptio.

The in iure phase ended with the litis contestatio, which bound the parties to the terms of the formula and the judge's decision, consuming the action.

Types of Actions:

1. Civil and Praetorian Actions: Civil actions derived from the law, while praetorian actions originated from the praetor's edict. Praetorian actions included: actiones utiles (extending civil actions by analogy), actiones ficticiae (based on the magistrate's authority), and actiones in factum conceptae (created for new situations).
2. Actiones in Rem (Real Actions) and Actiones in Personam (Personal Actions): Real actions protected property rights and were enforceable against anyone. Personal actions protected credit rights and were enforceable against a specific person.
3. Criminal, Reipersecutoriae, and Mixed Actions: Criminal actions pursued an illegal act. Reipersecutoriae actions sought a penalty. Mixed actions sought both the value of the thing and a penalty.
4. Actions of Good Faith and Strict Law: Actions of good faith allowed the judge to consider equity. Actions of strict law required the judge to adhere to the formula's terms.
5. Temporary and Perpetual Actions: Temporary actions had to be exercised within a specific time frame. Perpetual actions had no time limit.
6. Private and Popular Actions: Private actions could only be brought by the affected party or their heir. Popular actions could be brought by any citizen.

B. Apud Iudicem

After the litis contestatio, the parties appeared before the judge. They presented their oral arguments and evidence. The judge was free to evaluate the evidence. The sentence was the judge's opinion, usually given orally in the presence of the parties. The judge had to adhere to the formula, either convicting or acquitting the defendant.

Plurispetitio: Occurred when the plaintiff requested more than they were entitled to. This was not permitted. However, it was allowed to request less, but the plaintiff could not sue for the remainder during the same praetor's term.

Execution:

Once the sentence was final, it could be enforced through three modes:

1. Personal Execution: Through the actio iudicati, which could lead to a new trial if the defendant challenged the sentence.
2. Bonorum Venditio (Sale of Goods): A form of execution against the debtor's assets at the request of one or more creditors. If the debtor did not pay within a certain time, the assets were sold, and the proceeds were used to satisfy the creditors.
3. Distractio Bonorum (Piecemeal Sale of Goods): The debtor's assets were sold individually to cover specific debts.

Extra-Praetorian Protection:

The praetor could use various means based on their imperium (authority) to supplement their power, including interdicts, praetorian stipulations, and missions in possessionem. These were granted at the request of the applicant and were meant to provide temporary protection in urgent situations.

III. Extraordinary Procedure (3rd Century AD Onwards)

This procedure was fully developed under the state's authority and did not have two distinct phases. Its features included:

• No bipartition of the process.
• No written formula.
• Diminished importance of litis contestatio.
• Parties were subject to the judiciary and required to comply with its decisions.
• Actions were no longer extinguished by litis contestatio.
• Forms of action lost their importance.
• Contumacy (failure to appear) resulted in a default judgment.
• No possibility of appeal.
• The principle of"loser pay" for court costs was introduced.

Procedure:

• The citation was initially delivered privately but later through a public register.
• If the defendant did not appear, a court order could be issued, or they could be cited by edict.
• Both parties appeared before the judge. The plaintiff presented their allegations, and the defendant responded.
• Exceptions could still be raised at the beginning of the dispute.
• The litis contestatio fixed the parties' positions but did not consume the action.
• The judge could prioritize certain forms of evidence over others.
• Presumptions (legal inferences) played a significant role.

Judgment and Execution:

• The judgment was written and read by the judge.
• The judgment could involve more than just a sum of money, such as the delivery of a specific item.
• The judgment could be appealed to a higher judge or the emperor.
• Court costs were paid by the losing party.
• Execution proceeded through the actio iudicati, which could lead to a new trial if the defendant challenged the judgment.
• The primary form of execution was the seizure and sale of the debtor's assets.
• Cessio bonorum (transfer of assets) was also possible.

Imperial Rescriptio Procedure:

Individuals or judges could request the emperor to settle a dispute through an imperial rescript.