Appunti di Roman foundations of European Law

DECLARATORY AND EXECUTIVE

1st: the plaintiff made a situation certain if it is uncertain; they were the legis actio Sacramento in rem or in personam (most ancient), legis actio per condictionem, legis actio per iudicis postulationem

2nd: an action that is aimed to realise an uncertain situation that was made clear through the declaratory action. they were legis actio per manus iniectionem (most ancient), legis actio per pignoris capionem

Legis actio Sacramento in rem or in personam

Fundamental to understand the procedure in both; the sacramentum was a sum of money object of a wager between the parties; of 50 axes if the value of the controversy was up to 1000 axes, or if it was controversial the freedom state of a man. In all other cases the sum of money was of 500 axes.

At the end of the process the losing party should have paid the sum to the state bank; the wager came together with a solemn oath of the parties, which was followed by a procedure carried out by the entire community to say the truth

About who committed the crime, that needed to be exploited by the payment of money and, in the archaic period, as a sacrifice. After the establishment of the lay civitas, the mechanism of the wager remained valid but worked on a legal dimension; the wager was pronounced in front of the magistrate, the parties checked everything was done correctly, and then went before the layman judge.

IN REM: usually used to defend the right of property on rules and real estate and the other absolute rights. If a controversy had movables the concrete good had to be presented during the proceeding; if it was about an immovable the parties should have with them a symbol of the thing, a roof tile etc.

In front of the magistrate the parties pronounced the formulae (and touched the object with a festuca) and then there was no difference between the two parties cause they pronounced the same formulae, vindicatio.fi EX. Controversial property of a house: the formula would be "“…”" and because of this I made a

1. Solemn imposition of a symbolical twig called festuca with which they touched the object present in court.
2. After that, the second party made another imposition on the same rooftop tile.
3. Then was the moment of the real sacramentum (provocatio sacramenti): the 1st party challenged the second to wage some money and the second party says "I accept and challenge you to do the same".
4. All parties give a testimony and the praetor decides which of the two gave the best one; who did that can hold the object until the decision of the judge.
5. End of phase in iure, (now apud iudicem) the parties have to choose the judge and decide the controversy; (any Roman citizen could be judge, bias problem).

IN PERSONAM: it implied a difference between the parties and the plaintiff sued the defendant for an obligation to do something (giving a sum of money or a thing).

The confession of the defendant was like a sentence. If the defendant denied, there was a wager between the parties; the difference from the other is

that this had a general utility and could be used in every site in which there was an obligation of the defendant (debtor) towards someone.

There was a great limit of the procedure because the sentence of the judge who condemned the defendant to do something was always to pay a sum of money as a remedy because a declaratory action successfully brought by the creditor led to a sentence not with an order to do something, but to pay a sum of money within 30 days. If the defendant had to do something material for the plaintiff he could also do it but the sentence was to pay the money.

If they didn't pay in 30 days, —>legis actio per manus iniectionem

Called like so cause he could put his hands on the debtor to bring him to court, he could impose an af ictive personal penalty.

Again a formula the creditor had to pronounce, to open the process in which the unfulfilled debt was stated; the magistrate had to ensure the formalities of the formulas were fulfilled, then proceed to the addictio

seek payment of the property of the debtor (modern "ipoteca"). legis actio per condictionem most recent, declaratory and introduced via a lex cilia. Was extended by the lex calpurniam -> aimed to renew the procedure for cases in which the claim was for a specific sum of money for a certain thing.

The legis action sacramentum was very flexible, so they introduced these new procedures. With the conditionem was introduced legal protection for the obligations for loan of use... (debt, deposit) it gave legal protection. In cases where you have a contract, it had a strong abstract form preserved in the formular procedure in 2 variations: condictio certe rei + actio certae creditae pecuniae.

The first was used for the legal protection of controversial things, and the second for a certain sum of money.

In this legis actio, there's no sacramentum, no wager between the parties. If the defendant denied, the plaintiff could invite the defendant to appear before the magistrate after 30 days.

You still had to use the same exact words (onesentence excludes the other sentence by repeating it) > this was a wayto be clear.—> (ex. of “vines” instead of “trees”, person lost the case)

Too formal, therefore a new legal procedure emerged in Rome: theFormulary Procedure.—> the verba used were not anymore the certa but the conceptaverba; Gaius said that at some point with the lex Aebutia and the twoleges Iuliae, the legis actiones were replaced by the formularyprocedure.

In 242 a new magistrate was created, the praetor peregrinus; he had thepower to issue the edict with which he began to create actionsapplicable to disputes between romans and foreigners. He used theancient legis actiones as a model but introduced many changes andnew actions in order to ful l the need of the society that was quicklychanging, starting to become a big empire.fi fi fi fiIn the process that led to the formulary system, a role was played by theenactment

of the lex Aebutia; enacted between 130-120BC, its main purpose was to give the first legal recognition to the formulary legal procedure as an alternative to the legis actiones for the Roman citizens.

The formulary procedure at the beginning was only for romans who litigated with foreigners or foreigners, so the judgement was not recognised by the ius civile because the law created by the praetor was the ius honorarium, different form the ius civile. (actions at Law valid for the ius civile devoted only to romans and at the same time the formulary procedure not valid for the ius civile and applied to foreigners) —> = At some point at the end of the 3rd cent BC we have 2 parallel procedures: the actions of Law and the formulary procedure. The latter was much more effective therefore the romans wanted to use it, yet the judgement at the end of the trial was not recognised by the ius civile = problem! The first step towards the recognition of the formulary procedure in the ius civile was the

Enactment of the lex aebutia which recognised that some actions of the formulary procedure were effective for the ius civile too and not only for the ius honorarium. This represented the first step towards the complete recognition of the formulary procedure as the leaf procedure of the Romans and took place in 17BC. —> before it Augustus enacted the leges iliac iudiciorum (publicorum + privatorum) abolished the legis actiones, the only legal procedure recognised was the formulary one.

The formulary procedure in 17BC were defined the ordo; from then onwards any judgement given in a different format than the formulae procedure was extra-ordinary. (the formulary procedures were the regular judgements).

The name formulary procedure is that cause its main core was the formula; that had to be created before the magistrates in the in iure phase. It is the document containing the program and the main element concerning the litigation, all the questions of Law and of fact had to be put in the formula.

Doc between the parties but under the control of the magistrates. —> in the middle ages a glossator defined them as the “act of three persons collaborating together” (Bulgarus).fi fi fi fi fi

Written doc made of clauses (partes formularum), some parts are essential some others are not; the first ones were:

• The nominatio, the appointment of the judge form a list of possible candidates brought by the praetor (the first part) > in case of non-agreement the praetor could personally choose a name;
• The intentio, the plaintiff’s statement of claim where the issue is stated and the plaintiff had to affirm that he was the person who owed the land for ex., with no description of the facts, just a legal statement written in a hypothetical sentence