Procedure Form in Roman Law: Origins, Phases, and Formula
Item 22: Procedure Form
1. Origins and Characteristics
This section discusses the origins of the procedure form in Roman law, tracing its evolution from the legis actionem and its connection to the peregrine praetor. It highlights the increasing popularity of this procedure among citizens due to its flexibility compared to earlier methods.
Key Developments:
- 250 BC: Lex Aebutia allows the use of the procedure form.
- 218 BC: The procedure form becomes the sole legal procedure.
The procedure form is characterized as a legitimate procedure that is less formal than the legis actionem. It consists of two phases:
- In jure: Proceedings before the praetor.
- Apud iudicem: Proceedings before the judge.
2. Phases: In Jure and Apud Iudicem
This section details the steps involved in each phase of the procedure form.
In Jure Phase:
- Edictio actionis: The plaintiff states their claim against the defendant.
- In ius vocatio: The defendant is summoned to court.
- Vadimonium: The defendant provides a guarantee of appearance.
- Oaths: Various oaths can be administered, including the jusjurandum calumni (oath of good faith) and the jusjurandum necessarium (decisive oath).
- Acceptance or Denial of Action: The praetor decides whether to proceed with the case.
- Formula: If the action is accepted, a formula is drafted and sent to the judge.
Apud Iudicem Phase:
The judge receives the formula and conducts the trial based on the instructions provided.
3. Concept and Parts of the Formula
This section explains the formula, a crucial document in the procedure form. It outlines the different parts of the formula and their significance.
Parts of the Formula:
- Ordinary Parts: These are standard elements found in most formulas.
- Appointment of Judge: Names the judge who will preside over the case.
- Demonstratio: Explains the basis of the plaintiff’s claim.
- Intentio: States the plaintiff’s specific demands. It can be in rem (claiming ownership of a thing) or in personam (claiming a personal obligation).
- Adjudicatio: Authorizes the judge to divide common property.
- Condemnatio: Instructs the judge to either condemn or absolve the defendant. Condemnation is typically in monetary terms.
- Optional Parts: These parts are not always present but can be included at the request of the parties.
- Exceptio: Allows the defendant to raise a defense against the plaintiff’s claim.
- Praescriptio: Instructs the judge to consider specific circumstances or limitations in the case.
The formula serves as a guide for the judge in adjudicating the dispute and ensures that the proceedings are focused and efficient.