Diritto romano

Presence of both plaintiff and defendant before the magistrate (exception of the legis action

 per pignoris capionem): the 2 parties of the trial.

Plaintiff who starts the trail with the use of an action. He could use the force to bring the

defendant to before the magistrate after asking permission (in ius vocatio)

Defendant who is brought to the trial

Division in two phases (only for declarative legis actiones):

 1. in iure: before the king or magistrate depending on the period. In 367 BC

with the leges liciniae seste the magistrate was always the pretor while

before it was the consol. In the monarchy the party had to go before the

king.

2. apud iudicem: phase directed by a judge that in this procedure was a private

citizen and only in specific cases he had legal knowledge. The judge had to

decide who wins. The use of the right of the specific action was decided

before the magistrate

Typicality: typical legis actio for typical claim

 Declarative Executive

Also, today this trial is used for making A form of trial through which we have an

certain an uncertain situation execution of a certain situation, claim

Legis actio sacramenti (in rem and in directly put into effect (like if somebody

 cannot pay his fine)

personam) Legis actio per manus iniectionem



Legis actio per iudicis arbitrive

 Legis actio per pignoris capionem



postulationem

Legis actio per condictionem



Legis actio sacramenti:

Most ancient

 2 kind of application:

 in rem → the claim of the plaintiff is potentially towards everybody (erga omnes).

 Example: the right of ownership.

- The task of the judge is to ascertain the power of the plaintiff on the thing

that is the object of the trial.

- In the test of the formula, the intentio mentions only the name of the plaintiff

- The claim of the plaintiff is always defined as deriving ex iure Quiritium (in

the case of dominium), or defined in terms of an ius in re aliena to which the

plaintiff is entitled (in the case of praedial servitudes, ususfruct, etc.)

in persona→ claim of the plaintiff is towards a specific person (the debtor)

 Example: right is connected with another person behavior

- The task of the judge is to ascertain whether the defendant is truly bound to

such behaviour.

- In the test of the formula, the intentio mentions both the name of the plaintiff

and the name of the defendant

- The bond of the defendant toward the plaintiff is always expressed with the

Latin verb oportere

Legis actio sacramenti in rem was divided in 2 phases:

in iure

 1. Both parties should come before the magistrate taking the thing with themself (if

immovable, the actio should take place on the same piece of land that was the

object of the trial; later, the thing could be represented by a symbol, for instance a

brick, the keys)

2. Both parties had to touch the thing with a stake at the same time and each party

had to affirm that the ting was his. Demonstration of the power of both parties on the

thing (vindicatio for plaintiff and contraindicatio for the defendant)

3. Each party had to challenge the other to the sacramentum: a promise that the loser

would pay an amount of money to the state

4. The magistrate assigned the temporary possession of the thing to the best

guarantors presented by the parties who had to promise to handle over the thing to

the winner together with the fruit that the thing would have produced

5. Litis contestatio (invocation of witnesses to prove that the formalities had been

respected)

apud iudicem

 1. Informal discussion before the judge about a proof of the reason of the dispute

2. Oral decision given by the judge that says who wins

3. The loser had to pay the sum of money (sacramentum) and the guarantors had to

return the thing

Legis actio sacramenti in persona is divided into 2 phases:

in ure

 1. (If the defendant did not confess) the defendant denied the claim of the plaintiff

2. Each party had to challenge the other to the sacramentum

3. Litis contestatio (invocatio of the witness to prove that the formalities had been

respected)

apud iudicem:

 1. Informal discussion before the judge about a proof of the reason of the dispute

2. Oral decision given by the judge that says who wins

3. The loser had to pay the sum of money (sacramentum) and the amount of the credit

for the example of a bottle would be the amount of the bottle. While in the legis actio

sacramenti in iure we have the restitution of the thing in the one in personam we

have the payment of the value

The defendant instead of denying the claim of the plaintiff, could also:

1) neither admit nor deny such claim, in which case he would have been legally considered as

indefensus («having no legal defence») and should have been addictus («given», «assigned») to

the plaintiff).

2) admit his debt, in which case he would have been considered as confessus in iure («having

confessed such debt during the phase in iure») and the plaintiff could have sued him with the legis

actio per manus iniectionem Tuesday 5/10/2021

Only in the declarative legis action we have the part in iure and an apud iudicem one

Legis actio per iudicis arbitrive postulationem th

 Introduced by the 12 tables in the middle of the 5 century BC

 It could be used only for:

Credits deriving from stipulatio (Cases where a debtor on which arises an obligation

o through a simple promise made to the creditor)

rd

The division of an inheritance and from the 3 century BC with lex Licinia of things that

o were in common ownership

 The parties had to use specific words, saying the source of credit, similar procedure to the

legis action sacramenti in persona. Here we don’t find the sacramentum

 The decision was given by an iudex (for credits deriving from the stipulatio) or an arbiter

who is a person with specific knowledge (in all other cases)

Legis actio per conditionem

 Last legis actio introduced in roman Law because we know this action was introduced by a

rd

lex Silia in the 3 century BC for credits of a certain amount of money followed by a lex

Calpurnia 30 or 40 years after

 With the Lex Calpurnia it was extended for credits regarding specific things different from

money. Example: a slave

 This legis action useful because it was simple for obtaining the claim

 The phase in iure included:

- The plaintiff stated the amount or the object of his credit, without mentioning

its source which was a requirement in the legis actio sacramenti in persona



and in the actio per iudicis arbitrive postulationem Words were simpler

- The defendant could:

1) neither admit nor deny such claim, in which case he would have been

legally considered as indefensus and addictus to the plaintiff.

2) admit his debt, in which case he would have been considered as

confessus in iure and the plaintiff could have sued him 7 with the legis actio

per manus iniectionem);

3) deny being a debtor, in which case the magistrate would have ordered

him to come back after thirty days for the appointment of the judge who

would have decided the trial

Legis actio per manus iniectionem

 One of the most ancient one

 It could be used in 3 cases: 

Manus iniectio iudicati it could be used in case the defendant was condemned

o for being a debtor of a sum of money that he had to pay within 30 days.

Case where the creditor could sue with the manus inectio:

1)We have a decision against the defendant and after this moment the defendant

had 30 days to pay the amount of money. If he didn’t pay the plaintiff could use

against the debtor, the manus iniectio iudicati. The defendant in the declarative trial

decided to confess because we have a similar position between the defendant (?)

2) The confessus (who, according to the 12 tables, was considered as the iudicatus)

In the following 2 cases there weren’t a previous decision taken by the judge, so these 2 cases

regarded cases established by the law, specifically by statutes or law produced by mores:



Manus iniectio pro iudicato it could be used in cases where the juridical

o situation was clear enough to be considered as similar to a situation ascertained in

a previous trial.

Example: A guarantor that pays an amount of money for the debtor and if he didn’t

pay back the amount the guarantor could use this case against him. This is possible

also because the creditor knows that he was paid by the guarantor and not from the

debtor so there is no need for a declarative trial

Manus iniectio pura it could be used in further cases where the claim of the

o plaintiff was based on a situation provided by law

Used in a specific context of the law of inheritance

Distinction between when to use the pro iudicato and the pura is not completely clear

Procedure of the manus iniectio:

 Both parties should come before the magistrate. Same thing for the declarative leges

actiones

 The plaintiff (creditor), addressing to the defendant (debtor), says the amount or the abject

of his credit and the source of it

 The plaintiff declared his intentio to “manum inicere” (namely “to physically grab by hand”)

the debtor. The plaintiff needs an authorization by the magistrate to use force on the debtor

The debtor could:

 Appoint a vindex, who could save him from the manus iniectio. If the vindex loses the new

declarative trial open to defend the debtor, the vindex becomes the new debtor.

 If the debtor did not appoint a vindex, he was addictus to the creditor, who could keep him

in chains in his private prison for sixty days; during such period, the creditor should take the

debtor to the city market for three market days running (3 nundinum), proclaiming aloud the

amount of the debt so that somebody could ransom the debtor. If the debtor was not

ransomed, he could be sold as a slave outside Rome, or killed and according to the 12

tables, creditors could divide his body into pieces

Legis actio per pignoris capionem

 Dated back before the 12 tables

 It could be used for religious or military credits

 No need for the presence of magistrate or the debtor,

 Creditor had to use specific words while taking possession of the debtor who could ransom

the things belonging to him

 Formulary system

 Introduced for the growth of economic operations related to the expansion of Rome

rd

and praetor Pelegrinus, 3 century BC (242)

 Procedure available also to foreigner and easier to use than legis actiones

 Presence of both plaintiff and defendant, same in the legis actiones.

In the formulary system we have a private trial where the judge was a private

person. In the cognition extra ordinem the final decision was given by a

magistrate new and different prospective from legis actiones and formulary

system

 Division in 2 phases: in iure and apud iudicem

 Unique structure of the trial, regardle