could be insisted on—as, for example, for damages for breach of a
warranty of acreage of lands sold, or of their freedom from burdens.
If it could, then probably the question raised and dealt with sacramento
was the abstract one of liability—Was the warranty given,
and has it failed?—the sum due in respect of the breach being left
to be dealt with in a subsequent arbitral process (arbitrium liti
aestimandae).
The Legis Actio per Judicis Postitlationem.[1]-The defects of the Verona MS. have deprived us of Gaius's account of this Per judicis postitlationem. legis actio. There is little elsewhere that can with any certainty be said to bear upon it. The most important is a note in Valerius Probus—T.PR.I.A.V.P.V.D., which is generally interpreted—te, praetor, judicem arbitrumve postulo uti des. This petition to the magistrate to appoint a judge, arbiter or arbiters (as the case might be) in all probability was part of the procedure in the action, and that from which it derived its distinctive name. Beyond this all is conjecture, alike as to the nature and form of the action and the cases to which it was applicable. Gaius says of the legis actio sacramento that it was general, and that it was the procedure that was to be resorted to where no other was prescribed by statute. There are, however, nowhere indications of an express instruction that proceedings in any particular case were to be per judicis postulationem.
While it is impossible with certainty to trace the history of this procedure to its first beginnings, yet the impression is general that it must have originated in the regal period. It is commonly held to have been applicable to the divisory actions, and some others triable by arbiters as directed by the XII. Tables. Some eminent writers hold that it was employed in certain actions in which equitable considerations were allowed to be taken into account by the judge (e.g. the actio fiduciae), and generally in so-called jurgia as contrasted with lites. But this theory has many difficulties to contend with. It has no support from any ancient writer, and it leads to the result that the courts by legis actiones had power to take into consideration questions of bona fides, which is not only in contradiction with what Gaius says (iv. 11), but inconsistent wit their character.[2]
The Legis Actio per Condictionem.[3]—This, the youngest “action of the law,” was introduced, Gaius says, by the Silian Per condictionem. law as a means of recovering a liquid money debt (certa pecunia), and afterwards made available by the Calpurnian law for enforcing personal claims (as distinguished from real rights) for anything else definite and certain (omnis res certa), and in both its forms, therefore, essentially an action of debt. The date of both enactments is matter of controversy, although there is no question that the Silian was the earlier. Gaius says of it that its purpose was far from obvious, as there was no difficulty in recovering money either by a sacramental action or one per judicis postulationem. But it is probable, as above stated, that money due under a nexal contract was recoverable by neither of these processes, but by the much more summary one of manus injectio, a procedure which would be practically put an end to by the Poetilian law of 326 B.C. We are disposed to regard the lex Silia and the new procedure it authorized as a result of the change made by this last-mentioned statute. To have put off a creditor for money lent either with a sacramental action or one per judicis postulationem, would have been to deprive him of the advantages of manus injectio to a greater extent than was called for. At any rate, it seems to have been provided by the Silian law that, when a man disputed his liability for what was called pecunia certa credita, and forced his creditor to litigation, the plaintiff was entitled, if he pleased, to require from him an engagement to pay one-third more by way of penalty in the event of judgment being against him, while the soi-disant creditor had similarly to undertake to pay as penalty the same amount in case of judgment in favour of the alleged debtor. Those engagements (sponsio et restipulatio tertiae partis) were not allowed in every case in which a definite sum of money was claimed per condictionem, but only when it was technically pecunia credita. In Cicero's time creditum might arise either from loan, stipulation or literal contract (expensitatio); but the last dated probably at soonest from the beginning of the 6th century, and stipulation apparently was a result of the Silian law itself, so that the pecunia credita of this enactment can have referred only to borrowed money. The same phrase, according to Livy, was employed in the Poetilian law; it was thereby enacted, he says, that for pecunia credita the goods, not the body of the debtor, ought to be taken in execution. A connexion, therefore, between the Poetilian law and the disuse of the nexum on the one hand, and the Silian law and the introduction of the legis actio per condictionem on the other, can hardly be ignored, and raises a probability that the latter statute was a consequence of the former, and was passed immediately or soon after the year 326 B.C. In the action on the Calpurnian law, it is probable that there was no penalty of a third part on either side. A peculiarity of the legis actio per condictionem is that the plaintiff could when before the magistrate refer the case to the defendant's oath (juramentum necessarium). Taking the oath involved absolution, refusal involved condemnation.
Little is known of the procedure in this legis actio, for, in consequence of the loss of a leaf in the Verona MS., we are without part of Gaius's account of it. It got its distinctive name, he says, from the condictio or requisition made by the plaintiff on the defendant, whom he had brought into court in the usual way, to attend again on the expiry of thirty days to have a judge appointed. The procedure on the reappearance of the parties on the thirtieth day (provided a settlement had not been arrived at in the interval) varied according as the action was (1) for a definite sum of money falling under the category of pecunia credita, or (2) for any other definite sum of money or a definite thing or quantity of things. In the action for pecunia credita the sponsio et restipulatio tertiae partis were exchanged; and it is probable that, if either party refused on the praetor's command so to oblige himself towards the other, judgment was at once pronounced in favour of the latter without any remit to a judex. How the issue was adjusted when the sponsion and restipulation were duly given we are not informed, but, judging by analogy from the procedure in an action for breach of interdict under the formular system, and on the broader ground that there must have been machinery for a condemnation of the plaintiff on his restipulation in the event of his being found in the wrong, it may reasonably be concluded that there were in fact three concurrent issues sent to the same judex—the first on the main question, the second on the defendant's sponsion and the third on the plaintiff's restipulation. When a sum of money other than pecunia credita or a thing or quantity of things other than money was sued for, those subsidiary issues were unnecessary if the view above expressed be correct.
As Baron has demonstrated, it was not the usual practice to introduce any words explanatory of the ground of indebtedness when the action was either for money (other than pecunia credita) or for a thing or quantity of things. It might be loan, or bequest, or sale, or purchase, or delict, or unjustifiable enrichment, or any of a hundred causae; it would have to be stated of course before the judge; but in the initial stage before the praetor and in the issue all that was necessary was the averment that the defendant was owing such a sum of money or such a thing. It was for the judge to determine whether or not the averment was established and, in certain cases, that non-delivery was due to the fault of the defendant; the plaintiff, however, was bound to make his averment good to the letter of his claim. In the event of the plaintiff being successful in an action for certa pecunia, but delay was made by the defendant in satisfying the judgment, execution followed in ordinary form. How the matter was arranged in an action on the Calpurnian law for a certa res is not so obvious. What the plaintiff wanted was specific delivery or damages, and by some the opinion is entertained that he formulated his claim alternatively. Of this there is no evidence; and Gaius's statement that under the system of the legis actiones condemnation was always in the ipsa res, i.e. the specific thing sued for, leads to the assumption that a judgment for the plaintiff, on which specific implement failed, must have been followed by an arbitrium liti aestimandae for assessment of the damages in money, and that execution proceeded thereon as if the judgment had been for a sum of money in the first instance. The general opinion, however, is that the judge to whom the issue was remitted
- ↑ To the literature on p. 548, note 1, add Baron, “Zur leg. act. per judicis arbitrive postulationem,” in the Festgabe für Aug. W. Heffter (Berlin, 1873), pp. 29 sqq.; Huschke, Multa, &c., pp. 394 sqq.; Adolf Schmidt, “Ueber die l. a. per jud. post.,” in the Zeitschr. d. Sav. Stift. (1881), vol. ii., Röm. Abtheil. pp. 145 sqq.; Voigt, XII. Tafeln, vol. i. § 61.
- ↑ See on this Mitteis, Römisches Privatrecht (1908), p. 31 and p. 44 n. 11.
- ↑ To the literature on p. 548, note 1, add Bekker, Aktionen, vol. i. cap. 4-7; Voigt, Jus naturale, &c., , d. Römer (Leipzig, 1856-75), vol. iii. §§ 98, 99; Baron, Die Condictionem (Berlin, 1881), §§ 15, 16; Jobbé-Duval, Procédure Civile (1896), i. 61 sqq.
