« PreviousContinue »
dictio, used sometimes in the general sense of a personal action, had a special sense. Originally the condictio was the action by which the plaintiff demanded that the defendant should give, i.e. make over the full property in, something, and the thing to be given was something certum. It was therefore specially attached to unilateral contracts, i.e. to contracts made re (which, it will be remembered, are, with the exception of mutuum, bilateral only indirectly) or verbis or literis, or to such obligations quasi ex contractu as that to restore money unduly paid. But the condictio was extended to things uncertain, to the giving or doing something which was not fixed; and the condictio in its primary application received the name of condictio certi, and in its extended application that of condictio incerti, and the condictio certi, or simply condictio, was limited by usage to actions brought on contracts re, verbis, or literis, while condictiones certi, brought on other grounds, received special names, as the condictio indebiti, brought to enforce the repayment of money unduly paid. The condictio incerti always received a special name, according to the obligation it was brought to enforce, as ex stipulatu. (See Bk. iii. Tit. 15. pr.) Lastly, as the old condictio certi was, when first introduced by the lex Silia (510 A.U.c.), given to enforce the giving of a fixed sum of money, and only extended by the lex Calpurnia (529 A.U.c.) to enforce the giving of other things, the condictio, when brought for anything else except a fixed sum of money, and whether certi or incerti, was spoken of as triticaria, from triticum, wheat, one of the objects comprised in the extension made by the lex Calpurnia. The intentio in the condictio certi ran-Si paret oportere dare (decem aureos); and in the condictio incerti- Quicquid paret dare, facere oportere. Every action facere being necessarily uncertain, the condemnatio was necessarily uncertain, and so it was when dare even in condictiones certi, if the action was for anything but a fixed sum of money. If, for example, the action was to give a fixed amount of wheat, as every condemnatio was in a pecuniary shape, the defendant was condemned in the value, whatever it might be, of that amount of wheat- Quanti ea res erit.
2. Actions in jus, in factum, directæ, utiles, fictitiæ, in factum præscriptis verbis. These terms applied to actions indicate the modes in which the prætor extended or modified the law by the shape he gave to the formula. In shaping actions the prætor introduced changes of two kinds. First, he gave actions for the enforcement of rights altogether outside the old civil law, but sanctioned by the edict; or, secondly, he extended existing actions (generally civil, but sometimes prætorian) to cases and persons outside the limits in which these actions could be brought.
The principal mode in which he effected the first object was to frame the action so as to be in factum. Probably the actio in factum concepta shows the formula as framed in its earliest stage. The demonstratio and intentio were confounded or united in it. The prætor merely said, “If such a fact appears to be true, condemn the defendant.' Such a formula would enable the prætor to give legal remedies to persons who, under the civil law, could not sue, as peregrini or filiifamiliarum, or to give a legal remedy where none previously existed. When, on the other hand, the formula was applied to actions properly within the sphere of the civil law, then the formula had reference to this law; and in the intentio, separated from the demonstratio, it was said, “If the plaintiff has such and such a legal right, or the defendant is legally bound (oportet) to give or do, then condemn.' Reference being made to the law in this way, the formula was said to be in jus concepta.
When there was an existing action and the prætor wished to extend it to persons or cases not within its sphere, the existing action was termed directa, and the extended action utilis. In framing actiones utiles, the prætor had two resources. He either gave an actio in factum, i.e. stated that if a fact was ascertained the defendant was to be condemned, so that actiones in factum were used both to give a new remedy and to enlarge an existing action, or he devised a fictitious action in jus (actio fictitia). He said, “If something was true which is not true, then what would the plaintiff's legal rights be?' For example, if a plaintiff claimed as if he had acquired by usucapion before the time of usucapion had run, the prætor said, si anno possedisset, what would be the plaintiff's rights ? and the judge treated the plaintiff as if the year bad run.
Lastly, where there was an innominate contract executed on one side, the prætor gave an action in jus termed actio in factum præscriptis verbis, which was exactly like an action in jus on a nominate contract, only that, as the contract did not fall under one of the recognised heads, the facts had to be stated in order to show how the legal obligation had arisen.
3. Actiones stricti juris, bonæ fidei, arbitrariæ. This division depends on the varying amount of latitude given to the judge. The action might be one in jus concepta, and within the limits of the civil law; and then the judge had simply to decide the question submitted to him without taking into account any considerations of equity. But in some actions of this kind the prætor added the words ex fide bona, quod æquius, melius, or some equivalent expression; and then the judge imported equitable considerations, i.e. he took notice of dolus without an exceptio doli mali being inserted; he looked to customs and usages; he took cognisance of sets-off (compensationes), without these sets-off being distinctly brought before him by the formula ; he allowed interest from the time of default. The actions in which the judge had this latitude allowed him were termed bonae fidei actiones, as opposed to those stricti juris, where he had no such latitude; and, speaking generally, unilateral obligations gave rise to actions stricti juris, and bilateral obligations gave rise to actions bone
fidei. This division referred, however, to personal actions. In real actions the judge had a latitude by the actions being what was termed arbitrarice, i.e. an order to restore the thing was made, and if the thing was not restored (nisi restituat), then the defendant was condemned in a pecuniary equivalent fixed after taking all circumstances into account, and, as has been stated above, the defendant, if in possession, was forced to give up the thing. Some special personal actions, such as the actio ad exhibendum, were also made arbitrariæ.
Actions in factum were not exactly stricti juris or bonæ fidei, terms only applied to actions in jus concepte, but practically they . approached bonae fidei actions, as the prætor directed a condemnation if the facts were found as he thought proper to state them, and some of them were made arbitrariæ, and all condictiones incerti were so far like actions bonae fidei that the judge had to fix the pecuniary value, as he might think proper, of an uncertain thing.
4. Judicia legitima, imperio continentia.There is one more division of actions to be noticed in connection with the formulary system. We may ask as to actions (1) how long the right of bringing the action lasts after it has once arisen; (2) within what time the suit must be finished, so that, if the suit is not finished in the time, it must be recommenced; (3) whether the effect of the judgment is to bar fresh proceedings. Under the formulary system the answer to these questions was determined by technical distinctions, depending partly on the nature of the action, and partly on the authority of the magistrate. To sum up the results briefly, we may say (1) that all actions could be brought at any time after the cause of action bad arisen, except prætorian actions for a penalty or in derogation of a statute (see note on Tit. 12. pr.); (2) that judicia legitima, i.e. the proceedings in actions in which the parties were Roman citizens, and there was only one judge, also a Roman citizen, and the cause was tried in Rome or within a mile of Rome, must be finished within eighteen months after the formula was given, and those in other actions were measured by the authority of the magistrate, judicia imperio continentia, and must be finished within the term of office of the magistrate who gave the formula (GAI. iv. 105); and (3) that when judicia legitima were in personam the judgment in them barred further proceedings, but that in all other actions fresh proceedings were not barred, but could be stopped by an exception. (See note on Tit. 13. 5.) But this is a very subsidiary division of actions ; the other three-yiz. that according to the nature of the thing demanded, that according to the shape of the formula, and that according to the latitude given to the judge—are the principal divisions of actions. But, obviously, the same action may come under more than one division. Thus the actio Serviana (par. 7) was a real action in factum; the action de constituta pecunia (par. 9) was a personal action in factum; the actio empti (par. 28) was a personal bonce fidei action in jus concepta.
The Institutes in this Title notice six divisions of actions : (1) that according to the nature of the thing demanded (in rem and in personam) (par. 1-11), and (2) that according to the latitude given to the judge (par. 28-31). As the formulary system had passed away, they do not ostensibly notice the division according to the shape of the formula, but they refer to one of its main features by noticing the distinction of actions (3) according as the action was a prætorian application of the civil law, or was a new creation of the prætor (par. 3. 13). The other divisions noticed are subordinate, and refer (4) to the effect of the condemnatio, according as the action was penal or not (par. 16. 20); (5) according as the condemnatio was for the simple value, or for the double, treble, or quadruple value (par. 21-27); and (6) according as the whole sum in which the defendant might have been condemned was recoverable or not (par. 36-40).
1. Omnium actionum, quibus 1. All actions whatever, by which inter aliquos apud judices arbitrosve any matter is submitted to the dede qua re quæritur, summa divisio cision of judges or of arbitrators, may in duo genera deducitur : aut enim be divided into two classes; for actions in rem sunt aut in personam. Nam- are either real or personal. Either the que agit unusquisque aut cum eo, plaintiff sues the defendant, because he qui ei obligatus est vel ex contractu is made answerable to him by contract, vel ex maleficio, quo casu prodita or by a delict, in which case the actiones in personam sunt, per quas plaintiff brings a personal action, intendit, adversarium ei dare facere alleging that his adversary is bound oportere et aliis quibusdam modis : to give to, or to do something for him, aut cum eo agit, qui nullo jure ei or making some other similar allegaobligatus est, movet tamen alicui de tion. Or else the plaintiff brings an aliqua re controversiam. Quo casu action against a person not made prodita actiones in rem sunt. Veluti answerable to him by any obligation, si rem corporalem possideat quis, but with whom he disputes the right quam Titius suam esse affirmet, et to something, and for such cases real possessor dominum se esse dicat : actions are given ; as, for example, if nam si Titius suam esse intendat, in a man is in possession of a correm actio est.
poreal thing, which Titius maintains to be his property, while the possessor says that he himself is the proprietor, here, if Titius asserts that the thing is
his, the action is real.
Gal. iv. 1. 3 ; D. xliv. 7. 25. 2. Æque si agat, jus sibi esse 2. So, too, if any one alleges that re, fundo forte vel ædibus utendi- he has a right to the usufruct, for infruendi vel per fundum vicini cundi, stance, of land, or of a house, or that agendi vel ex fundo vicini aquam he has a right of going, or driving his ducendi, in rem actio est. Ejusdem cattle, or of conducting water, over generis est actio de jure prædiorum the land of his neighbour, the action urbanorum, veluti si agat, jus sibi is real ; as also are actions relating to esse altius ædes suas tollendi prospi- prædial servitudes, as when a man ciendive vel projiciendi aliquid vel alleges a right to raise his house, a immittendi in vicini ædes. Contra right to an uninterrupted view, a right quoque de usufructu et de servituti- to make part of his house project, or bus prædiorum rusticorum, item of inserting the beams of his building prædiorum urbanorum invicem quo- into his neighbour's walls. On the que prodite sunt actiones, ut quis other hand there are actions relating intendat, jus non esse adversario to, usufructs, and the servitudes of utendifruendi, eundi, agendi aquam- country and city estates, which are ve ducendi, item altius tollendi, the reverse of these ; as when the comprospiciendi, projiciendi, immittendi: plainant alleges that his adversary is istæ quoque actiones in rem sunt, not entitled to the usufruct, or has not sed negativæ. Quod genus actionis the right to go, to drive, to conduct in controversiis rerum corporalium water, to raise his house, to have an proditum non est : nam in his is agit, uninterrupted view, to throw out proqui non possidet : ei vero, qui possi- jections, or to insert his beams. These det, non est actio prodita, per quam actions are equally real, but are neganeget, rem alterius esse. Sane uno tive, and cannot therefore be used in casu qui possidet, nihilominus actoris disputes respecting things corporeal, partes obtinet, sicut in latioribus for in these disputes it is the person digestorum libris opportunius ap- out of possession who brings the acparebit.
tion : for a possessor cannot bring an
Usufructs, uses, rural and urban servitudes, might be the objects of real actions. These actions were either confessorice or negative; in the former the plaintiff claimed to exercise a servitude over the immoveables of another, in the latter he maintained that a servitude which another attempted to exercise over an immoveable belonging to the plaintiff was not due.
The actio confessoria might be brought either when a person claiming a servitude found this right contested, or when any obstacle, as if a tree overhung a way over which a servitude vice or actus was claimed, prevented the free enjoyment of the servitude. (D. viji. 5. 4, 5.)
The actio confessoria might be brought by the person claiming the servitude, whether he was or was not in possession of the servitude. For example, a man claims a servitude non altius tollendi— that his neighbour should not build his house higher than that of the claimant. Before the neighbour has built his house higher the claimant of the servitude is in possession of the servitude. He has his servitude and enjoys the advantages of it. After the neighbour has built his house higher, the claimant of the servitude has his servitude, but is no longer in possession of it. In either case the claimant of the servitude might bring his actio confessoria (D. viii. 5, 6. 1), although, if he was still in possession, he was further secured by being allowed to apply, if he pleased, for a prohibitory interdict (see Tit. 15) after interdicts were granted to protect servitudes.
The actio negativa was virtually an affirmative action brought by the owner of the immoveable, claiming that the thing was his, freed from the servitude. Originally the possession of a servitude was not protected by interdicts, and the use of the actio negativa was to protect the enjoyment of the thing free from the servitude,