thereof condemn N. N.,” and so on.[1] Once this point was attained
further progress was comparatively easy, the way being open for
the construction of formulae upon illiquid claims arising from
transactions in which the practice of stipulation gradually dropped out
of use, till at last the bonae fidei judicia were reached, marked by
the presence in the “intention” of the words ex fide
bona—“whatever in respect thereof N. N. ought in good faith to give to or
do for A. A.”
In the case of real actions the transition from the legis actiones to the formulae followed a different course. The Aebutian law, Its application to real actions. while sanctioning the competency of formulae, did not interfere with the procedure per sacramentum when reference was to be to the centumviral court on a question of quiritarian right. In the time of Cicero that court was apparently still in full activity (supra), but by that of Gaius, owing, it is supposed, to the Julian laws having made formulae in most cases compulsory, it was rarely resorted to except for trial of questions of inheritance. In his time questions of property were raised either per sponsionem or per formulam petitoriam. The procedure by sponsion may be regarded as a sort of bridge between the sacramental process and the petitory vindicatio. In it the question of real right was determined only indirectly. The plaintiff required the defendant to give him his stipulatory promise to pay a nominal sum of twenty-five sesterces in the event of the thing in dispute being found to belong to the former; and at the same time the defendant gave sureties for its transfer to the plaintiff, with all fruits and profits, in the same event. The formula that was adjusted and remitted to a judge raised ex facie only the simple question whether the twenty-five sesterces were due or not: the action was in form a personal, not a real one, and was therefore appropriately remitted to a single judex instead of to the centumviral tribunal. But judgment on it could be reached only through means of a finding (sententia) on the question of real right; if it was for the plaintiff, he did not claim the amount of the sponsion, but the thing which had been found to be his; and, if the defendant delayed to deliver it, with its fruits and profits, the plaintiff had recourse against the latter's sureties. The petitory formula was undoubtedly of later introduction and much more straightforward. Like the condictio certae pecuniae, it contained only “intention” and “condemnation.” It ran thus: “Titius be judge. Should it appear that the slave Stichus, about whom this action has been raised, belongs to A. A. in quiritary right, then, unless the slave be restored, whatever be his value, in that you will condemn N. N. to A. A.; should it not so appear, you will acquit him.”
The formulae given above, whether applicable to real or personal actions, are so many illustrations of the class known as formulae Formulae in jus and in factum conceptae. juris civilis or in jus conceptae. The characteristic of such a formula was that it contained in the “intention” such phrases as the following—ejus esse ex jure Quiritium, praestare oportere,[2] dare oportere, dare facere oportere, or damnum decidere oportere.[3] Such words were employed where the right to be vindicated or the obligation to be enforced had its sanction directly in the jus civile whether in the shape of statute, consuetude or interpretation. Where, on the other hand, the right or obligation had its sanction solely from the praetor's edict, special formulae had to be framed. The actions employed in such cases were actiones juris honorarii, and these either actiones utiles or actiones in factum. The first were adaptations of actions of the jus civile to cases that did not properly fall within them; the second were actions entirely of praetorian devising, for the protection of rights or redress of wrongs unknown to the jus civile.[4]
Utilis actio may be translated as analogous or adapted action, i.e. analogous to a direct action. Where a direct action was Actiones utiles. inapplicable to particular cases or persons, according to the terms of a lex, edict, &c., the praetor frequently adapted the statute, &c., to such cases and persons by granting an actio utilis. He did so where he thought them to be within the spirit though not the letter of the law. He effected his object commonly by a modification of the regular formula either objectively, as by adding, or omitting, or altering words, or subjectively by transposing names of parties. But sometimes also the adaptation was made by the introduction of a legal fiction into the regular formula, and in this case the action was called utilis fictitia or simply fictitia. The actiones utiles might, therefore, be of two kinds, ordinary and fictitious. Those of common occurrence early became stereotyped in the Edict and even got special names.
As illustrations of an ordinary actio utilis, in which the formula was objectively modified, reference may be made to the numerous Ordinary. actions for wrongful damage to property under the lex Aquilia. Thus this statute in its first chapter used the term occidere, which means killing by a physical act of violence (corpore corpori), but to meet cases of killing without violence (e.g. by poison) the praetors simply substituted the words mortis causam praestare for occidere in the formula. As illustrations of an ordinary actio utilis with subjective transposition of names, we may mention the actio Rutiliana applicable to a purchaser of the bankrupt estate of a living debtor, the action by an assignee of a debt against the debtor, and the action of a procurator suing for his principal. In these the names of the bankrupt, cedent and principal respectively appeared in the intentio, while the plaintiff's name was inserted in the condemnatio.
Resort to a fiction is sometimes said to be a confession of weakness, and adversely criticized accordingly. But every amendment on Actiones fictitiae. the law is an admission of defect in what is being amended; and it was in sympathy with the spirit of Roman jurisprudence, when it found an action too narrow in its definition, to include some new case that ought to fall within it, rather by feigning that the new case was the same as the old, to bring it within the scope of the existing and familiar action, than to cause disturbance by either altering the definition of the latter or introducing an entirely new remedy. A bonorum possessor held a position unknown to the jus civile; he was not an heir, and therefore not entitled offhand to employ the actions competent to an heir, either for recovering the property of the defunct or proceeding against his debtors. The praetor could have had no difficulty in devising new actions to meet his case; but he preferred the simpler expedient of adapting to it an heir's actions, by introducing into the formula a fiction of civil heirship; so he did with the bonorum emptor or purchaser of a deceased bankrupt's estate at the sale of it in mass by his creditors. A peregrin could not sue or be sued for the penalties imposed for theft or culpable damage to property, for the XII. Tables and the Aquilian law applied only to citizens; but he could both sue and be sued under cover of a fiction of citizenship. A man who had acquired a res mancipi on a good title, but without taking a conveyance by mancipation or surrender in court, if he was dispossessed before he had completed his usucapion, could not sue a rei vindicatio for its recovery, for he was not in a position to affirm that he was quiritarian owner; neither, for the same reason, could a man who in good faith and on a sufficient title had acquired a thing from one who was not in a position to alienate it. But in both cases the praetor granted him what was in effect a rei vindicatio proceeding on a fiction of completed usucapion—the Publician action referred to on p. 556. These are examples of actiones fictitiae—actions of the jus civile adapted by this very simple expedient to cases to which otherwise they would have been inapplicable, and forming one of the most important varieties of the actiones utiles.
Quite different was the course of procedure in the actiones in factum, whose number and varieties were practically unlimited, although for the most part granted in pursuance of the praetor's promise in the edict that under such and such circumstances he would make a remit to a judex (judicium dabo),[5] and formulated in accordance with the relative skeleton styles also published on the album. A great number of them came to be known by special names, as, for example, the actio de dolo, actio negotiorum gestorum, actio hypothecaria, actio de pecunia constituta, actio vi bonorum raptorum, actio de superficie, &c.—the generic name actio in factum being usually confined to the innominate ones. Their formulae, unlike those in jus conceptae, submitted no question of legal right for the
- ↑ This actio ex stipulatu used to be regarded as nothing more than a variety of the condictio incerti. It is doubtful, however, whether in the condictiones incerti (e.g. the condictio furtiva) there was any demonstratio. See Girard, Manuel, p. 614, n. 2 and 3 and authorities there cited.
- ↑ Employed in the divisory actions, i.e. for dividing common property, partitioning an inheritance, or settling boundaries; the demand was that the judge should adjudicate (or assign) to each of the parties such a share as he thought just. See Lenel, Edict. Perpet. 2nd ed. pp. 202, 205.
- ↑ Employed in certain actions upon delict, where the old penalties of death, slavery or talion had in practice, or by the praetor's authority, been transmuted into money payments, and the defendant consequently called upon to pay penal damages. According to Lenel, Ed. Perp. 2nd ed. p. 287, the form dare facere praestare oportere was probably used in actions pro socio.
- ↑ These latter have an analogy to the English “action on the case.” In a few instances there was both civil and praetorian remedy for the same wrong; for Gaius observes (iv. 47) that in commodate and deposit failure of the borrower or depositary to return the thing lent to or deposited with him gave rise to actions that might be formulated either in jus or in factum. In the same section he gives the styles of actiones depositi in jus and in factum conceptae; their comparison is instructive. The formula in factum must almost certainly have been the earlier and shows, it is thought, that deposit and commodate were enforced (perhaps first by the peregrin praetor) by means of edicts before being admitted into the jus civile.
- ↑ Examples: “Si quis negotia alterius . . . gesserit, judicium eo nomine dabo” (Dig. iii. 5, 3, pr.); “Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit et justa causa esse videbitur, judicium dabo” (Dig. iv. 3, 1, § 1); “Nautae caupones stabularii quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo” (Dig. iv. 9, 1, pr.); “Quod quis commodasse dicetur, de eo judicium dabo” (Dig. xiii. 6, 1, pr.).
