instituted, is unknown in the classical law of Rome, and was only $40. introduced in the later empire (by the Emperor Zeno) for cases where an action was brought before the claim was due. ... pr. I. de except. (4, 13): Comparatae sunt autem exceptiones pr. I. de replicationibus (4, 14): Interdum evenit, ut exceptio, § 41. $41. Actio Perpetua and Actio Temporalis. Tempus Utile. THERE were a number of actiones honorariae which the magistrate only granted within a prescribed period. The praetor would thus more especially decline to grant any penal praetorian action after the lapse of an 'annus utilis,' i. e. any action where the claim to a penalty was founded, not on the civil law, but solely on the praetorian edict. Actions which had to be brought within a prescribed period of limitation are known as 'actiones temporales.' Such a limitation of the right of action implied at the same time a limitation of the right itself, because in all actiones honorariae the plaintiff's legal title rested solely on the promise to grant an action which the praetor announced in his edict (judicium dabo). If the praetor expressly limited his promise to give an action to one year (intra annum judicium dabo), he thereby imposed the same limitation on the plaintiff's right. The expiry of the period extinguished the actio temporalis, and, with it, the right (say, to recover a penalty). On the other hand, limitations of actions were on principle unknown to the civil law. Actiones civiles, as well as those actiones honorariae which the praetor had not limited within any definite period, were called 'actiones perpetuae.' It was only in quite exceptional cases that in the civil law actions were barred after a certain time 1. The Emperors Honorius and Theodosius, however, moved by obvious considerations of convenience, enacted in 424 A. D. that all actions should be barred within a certain period. This period was fixed at thirty years in ordinary, at forty in some exceptional cases. If the plaintiff brings an action after the lapse of this period, he may be met with the plea of limitation (praescriptio temporis). The former rules as to limitations of actions remained in force. 1 Thus the action de statu defuncti and the querela inofficiosi testamenti (§ 100) had to be brought in five years. Thus actiones perpetuae are henceforth actions which are barred § 41. within thirty or forty years; actiones temporales are actions which are barred within shorter periods. A civil law right is founded, not on any promise to grant an action, but simply on the positive law, on the strength of which the magistrate grants the action. Here the legal right begets the legal remedy. Thus though the limitation of civil law actions which Theodosius II introduced operated to bar the action, it did not operate to bar the right itself. It was in this sense that the later Roman law took the limitation of actions, even as applied to actiones temporales, and it was in the same sense that a uniform system of limitations of actions was developed in the law of the Corpus juris which has been received in Germany-a system in which the periods of limitation vary in length and operate, in all cases, to extinguish, not the right, but only the remedy. The year fixed by the praetor for cases falling under his rules of limitation was the so-called 'annus utilis,' i. e. a year in which only those days were counted on which legal proceedings could actually be commenced, in other words, those days on which the courts sat, and on which the intended defendant was known and could be actually sued, &c. The term 'tempus utile' is thus explained. Tempus utile means time in the judicial sense, in the sense namely in which only those days are counted which are open to judicial acts, i. e. in the classical period, to acts performed in the presence of the praetor2. The opposite of tempus utile is 'tempus continuum,' i. e. time in which, on principle, every day is counted. In the above-mentioned limitations of actions to thirty (or forty) 2 Tempus utile occurs, in virtue of a rule of law, only where judicial acts (the commencement of an action, an application for bonorum possessio, § 97) come into question. In applying for bonorum possessio the petitioner invokes the aid of the praetor in his judicial capacity, though it was the invariable rule, as early as the classical period, that such application could be addressed to the praetor anywhere (de plano) without any formal sitting of the § 41. years, time is counted as 'continuum,' in the sense we have just defined. § 42. L. 35 pr. D. de O. et A. (44, 7) (PAULUS): In honorariis actionibus sic esse definiendum Cassius ait: ut, quae rei persecutionem habeant, hae etiam post annum darentur; ceterae intra annum. L. 1 D. de div. temp. praescr. (44, 3) (ULPIAN.): Quia tractatus de utilibus diebus frequens est, videamus, quid sit experiundi potestatem habere. Et quidem inprimis exigendum est, ut sit facultas agendi: neque sufficit reo experiundi secum facere potestatem, vel habere eum, qui se idonee defendat, nisi actor quoque nulla idonea causa impediatur experiri. Proinde sive apud hostes sit, sive reipublicae causa absit, sive in vinculis sit, aut si tempestate in loco aliquo vel in regione detineatur, ut neque experiri neque mandare possit, experiundi potestatem non habet. Plane is, qui valetudine impeditur, ut mandare possit, in ea causa est, ut experiundi habeat potestatem. Illud utique neminem fugit, experiundi potestatem non habere eum, qui praetoris copiam non habuit; proinde hi dies cedunt, quibus jus praetor reddit. $42. The Effect of an Action at Law. In every lawsuit there are two principal acts: firstly, the 'litis contestatio,' the formulating of the legal issue (pp. 149, 174, 175); secondly, the 'judgment,' the decision of the legal issue. I. Litis Contestatio. The effect peculiar to the litis contestatio is that it results in the pendency of the cause. That is to say, once the issue has been formulated, the same cause cannot be brought to trial a second time, but must be carried to a final decision on the basis of the issue thus formulated in this particular suit. The litis contestatio marks the decisive exercise by the plaintiff of his right of action. Hence it follows, firstly, that the period of limitation of the right of action is not interrupted till the litis contestatio has taken place; secondly, that the litis contestatio consumes the right of action. The action cannot be brought over again (bis de eadem re ne sit actio). Any attempt to obtain a judicial re-hearing of the same question (eadem § 42. quaestio) would be met by the exceptio rei judicatae vel in judicium deductae1. Thirdly, it follows that the litis contestatio is the basis of the judgment. The judgment refers back to the moment of the litis contestatio. The plaintiff must have possessed the right he claims at the moment of the litis contestatio. On the other hand, if the plaintiff is successful, the judgment is to place him retrospectively in the same position as though judgment had been given in his favour at once at the moment of the litis contestatio. This is why the judgment directs the restoration of mesne profits, the payment of damages, and so forth. It was this peculiar effect of litis contestatio that suggested to the Romans a comparison between it and the so-called 'novatio' or transformation of a liability (inf. § 67 II). Once the issue has been joined, it is no longer the performance of the act originally due that the plaintiff can claim from the defendant by means of his actionfor to allow that would be to allow the repetition of the same action --but merely the continuation of the proceedings that have once been commenced: ante litem contestatam dare reum oportere, post litem contestatam condemnari oportere (Gajus III § 180). In consequence, moreover, of the principle of a money condemnatio (p. 189) the original claim of the plaintiff is, in the classical law, transformed into a money claim. Finally, litis contestatio has the effect of converting a claim which, in itself, is not transmissible to the heir (e. g. the actio injuriarum) into a transmissible one. The pendency of the cause, which is the result of the litis contestatio, has therefore this effect in regard to legal procedure that it consumes and, at the same time, resuscitates the right which the plaintiff is seeking to enforce. II. Judgment. The peculiar effect of a judgment lies in its legal force. When no 1 Cp. p. 175, note 2. The so-called negative function of the exceptio rei judicatae-its function, namely, to give effect to the consuming power of an action at law is its principal function. But, as is observed in the text under II, Р the same exceptio may also be used- |