History & institutions of civil procedureon 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 proactore

(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

CondemnatioThe 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 proceedingsThe 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)

Enforcement cont.

• Selection from among creditors magister bonorum

• Within 30 days of announcement of enforcement for living debtors; 15 days for estates after deceased debtors. After these deadlines passed, the debtor was assigned infamia and his assets were sold at auction

• Venditio bonorum: sale of assets at auction.