$39. The System of Actions.

I. Actiones in personam and Actiones in rem.

Every intentio is so framed as to be either personal (in personam) or impersonal (in rem). An intentio in personam names the person of the defendant (who is on certain conditions to be condemned), an intentio in rem does not name the person of the defendant but only the person of the plaintiff, in other words the person who claims the right. Upon this antithesis is based the supreme division of all actions into actiones in personam, where the intentio is in personam, and actiones in rem, where the intentio is in rem.

The antithesis is not merely an external one, but is grounded on a fundamental difference in the nature of private rights themselves. The so-called obligatory rights, which form one class of private rights, are rights co-extensive with the liability of a single person, viz. the debtor, and it is impossible to specify the concrete obligatory right without, at the same time, specifying this particular person. The person of the opponent (the debtor), and therewith the person of the defendant, is pointed to and marked out, as it were, by the very nature of the plaintiff's right. The intentio, whether in jus or in factum concepta, must name the person of the debtor, because he (the debtor) in a sense individualizes the right. Where there is a different debtor, the right itself is different. The intentio thus runs, e. g. si paret Num. Num. Ao. Ao. dare oportere. All other rights, on the other hand, more especially, though not exclusively, real rights like ownership, do not consist in the liability of one definite person, but are rights which not only subsist, but can, if necessary, be enforced against everybody. Rights of this description are not, as such, available against any one definite person. It is only when the plaintiff's right is violated, but not till then, that the person against whom his right is available, in other words, the person of the defendant is determined. And the plaintiff has the same right of action, on the ground of the same right, every time this right of his is violated. The right remains the same, however different the parties against whom it is enforceable. In such cases

$39.

§ 39. the intentio is impersonal (e. g. si paret hominem quo de agitur Ai. Ai. esse ex jure Quiritium), i. e. it does not specify the defendant, whose name does not appear till the condemnatio.

Thus the nature of the intentio determines the nature of the actio.

An action arising from an obligatory right is an actio in personam, an action arising from any other right (ownership, right of pledge, paternal power, right of succession, &c.) is an actio in rem. Or, to put it in terms of private law: an obligatory right is a right the content of which is relative as against a definite person, the remaining rights are rights the contents of which are absolute.

II. Actiones in rem.

Real actions (actiones in rem) arise either from real rights (infra, § 47 ff.), such as ownership (rei vindicatio, actio negatoria), or from family rights, such as the power of the paterfamilias over his children (vindicatio filii in potestatem), or from rights of succession (hereditatis petitio, interdictum quorum bonorum), or from rights of 'status,' i. e. rights to a recognition of one's personal standing (e. g. of one's ingenuitas, parentage, freedom from patria potestas). The actions on status belong to the so-called 'actiones praejudiciales,' i. e. those actions of Roman law the object of which was to obtain, not the condemnation of the defendant, but merely a judicial acknowledgment of a legal relation, such as liberty 1.

The so-called 'actio in rem scripta' is not an actio in rem, but an actio in personam, springing from an obligation and available, therefore, against an existing defendant, but with this peculiarity that the debtor is not specifically determined, but is only characterized by a general description to which different persons may answer at different times. It is therefore an actio in personam where the person of the debtor varies from time to time. An example would be the actio quod metus causa (p. 135), by which a man who has concluded a juristic act under the influence of fear, claims to recover the property he has involuntarily parted with from any one who is now, for the time being, in actual enjoyment of the

For more details on the praejudicia v. Bekker, Actionen, vol. i. p. 283 ff.

benefits accruing from the act in question, e. g. the person who is § 39. now, for the time being, owner of the thing which was alienated metus causa. The effect of the action is real (i. e. it is 'in rem scripta '), in so far as it is directed not only against the author of the metus, but also against any third party to whom the former may have transferred ownership in the thing; but on the other hand the action is not a real action, because the plaintiff cannot rest his claim against the third party on his ownership (the defendant himself being owner), but must rest it on an obligation, springing from the metus and aiming at the retransfer to the plaintiff of the ownership he had involuntarily given up. Another example occurs in the case of a partition suit where one co-owner of property claims the partition of the joint property from such other person as is, for the time being, co owner of the same property.

III. Actiones in personam.

Obligations arise either from contracts (or facts analogous to contracts), or from delicts (or facts analogous to delicts). Hence all actions in personam are either contractual (or quasi-contractual) or delictual (or quasi-delictual) (§ 64).

IV. Actiones stricti juris and Actiones bonae fidei.

Contracts are either negotia stricti juris or negotia bonae fidei according as the liability involved is precisely determined or not (§ 63). Hence all contractual actions are either actiones stricti juris (actions on loans, stipulationes, &c.) or actiones bonae fidei (actions on sales, lettings, bailments, &c.). An actio stricti juris is called a condictio if the formula does not state the cause of the action (§ 67, n. 5).

The intentio in an actio bonae fidei is always incerta (quidquid Num. Num. Ao. Ao. dare facere oportet ex bona fide), the intentio of an actio stricti juris is only incerta, when the express object of the negotium stricti juris is an incertum. In cases of an incerta intentio (i. e. in all cases of bonae fidei actions) the intentio opens with a so-called 'demonstratio,' i. e. with the naming of the contract from which the claim for the incertum (the quidquid) arises. For example: quod Aus. Aus. apud Num. Num. hominem deposuit, quidquid, &c.

A delict may render the delinquent liable to pay either compensation or a penalty or both, and in the last case the same action may be available for the double purpose of claiming compensation and exacting the penalty, or again, the delict (e. g. theft) may give rise to two independent actions: one for the recovery of compensation (e. g. the condictio furtiva), the other for the recovery of a penalty (e. g. the actio furti). Hence all delictual actions are either rei persequendae causa comparatae (reparatory), or poenae persequendae causa comparatae (penal), or mixtae (reparatory and penal).

The right to sue for the penalty consequent on the commission of a delict may either be confined to the person injured or may be open to everybody (cuivis ex populo). Hence all penal actions (actiones poenae persequendae causa comparatae, actiones poenales) are either private (open only to the injured party), or 'populares.'

§ I. de actionibus (4, 6): Omnium autem actionum, quibus inter aliquos apud judices arbitrosve de quaque re quaeritur, summa divisio in dua genera deducitur: aut enim in rem sunt aut in personam. Namque agit unusquisque aut cum eo, qui ei obligatus est vel ex contractu vel ex maleficio: quo casu proditae sunt actiones in personam, per quas intendit adversarium ei dare aut dare facere oportere, et aliis quibusdam modis; aut cum eo agit, qui nullo jure ei obligatus est, movet tamen alicui de aliqua re controversiam : quo casu proditae actiones in rem sunt, veluti si rem corporalem possideat quis, quam Titius suam esse affirmet, et possessor dominum se esse dicat: nam si Titius suam esse intendat, in rem actio est.

§ 13 eod. Praejudiciales actiones in rem esse videntur: quales sunt, per quas quaeritur, an aliquis liber vel an libertus sit, vel de partu agnoscendo.

§ 20 eod. Quaedam actiones mixtam causam optinere videntur, tam in rem quam in personam : qualis est familiae erciscundae actio, quae competit coheredibus de dividenda hereditate. Item communi dividundo, quae inter eos redditur, inter quos aliquid commune est, ut id dividatur; item finium regundorum, quae inter eos agitur, qui confines agros habent.

§ 40. Condemnatio and Exceptio.

I. Condemnatio.

The condemnatio is the clause in the formula in which the praetor orders the judex to condemn the defendant, The condition on which the condemnatio is to take place is contained in the intentio. If the intentio is true, the judex is to condemn. It is only in the actiones praejudiciales (p. 186) that the formula consists of nothing but an intentio, a condemnatio not being needed, because, in such cases, the sole purpose of the formula is to require the judex to pronounce upon the specific question (say, of status) submitted to him (pronuntiatio).

The gist of the condemnatio, as ordered by the praetor, invariably lies in a money payment to be imposed by the judex (pecuniaria condemnatio), even in cases where the plaintiff has established a claim to the restitution (restituere) or production (exhibere) of a definite object which is in the possession of the defendant,

The only claims which, not only in the earlier but also in the classical period of Roman law, admitted of direct judicial execution are liquidated money debts. Hence the judex, in liquidating the plaintiff's claim by means of his judgment, is bound to convert this claim at the same time into a claim for a pecuniary sum.

But the pecuniaria condemnatio frequently operates unfairly, more especially in such cases as those just adverted to, viz. suits where the plaintiff claims the restitution or production of property. The plaintiff may, for example, have successfully proved that he is owner of some object which the defendant withholds from him. Nevertheless, inasmuch as the defendant is merely condemned in a sum of money, he (the plaintiff), though he has clearly established hist title as owner (rei vindicatio), does not recover the object which belongs to him, but merely the pecuniary damages paid him by the defendant. The result is that the defendant, though defeated in the suit, nevertheless remains in possession of the object. Nay, what is more, in the very same moment in which he pays the

§ 40.