Roman Law: Extra-Processual Legal Protections
Item 23: Extra-Processual Legal Protections
There are cases in which the Praetor acts by itself with its imperium. This approach, which is almost always related to religious matters, is performed outside the process. This simplifies the process, prevents the need for a process, or guarantees certain aspects of the process. This allows the Praetor to view the case and provide protection independent of other actions.
1 – Injunction
An injunction was and remains a magistrate’s order that attempts to resolve a conflict between two persons on a provisional basis, without fully entering into a formal process. A typical case is a new building where the owner wants to open a window in a wall shared by two properties. These injunctions are very old and have been passed down throughout Roman law.
There are two stages:
- Procedure for granting the injunction.
- Ex injunction procedure to run.
The first stage involves a petition on any day, without the need for the other party to be present. Once the Praetor gives the order, it must be obeyed and is usually complied with, because violating it leads to a costly procedure, the ex injunction. This is a real trial that raises the question of whether the condition on which the injunction is based is valid and if the order is fulfilled.
The second stage, ex injunction, involves et sponsiones et restituises. The person to whom the injunction was given makes a promise to the other party to pay a sum if the injunction is disobeyed. The other party makes a promise (sponsio) that they will pay if the injunction is met.
2 – In Integrum Restitutio
In integrum restitutio is a failure to recognize the effects of an act valid under Ius civile. It is initiated by a magistrate. For example, if a person in good faith occupies a territory and no claims are made within two years, this person takes the title.
The circumstances are:
- There was a direct…
- There is no means of defense.
- It is a fact recognized by the edict of the Praetor.
- Awarded to those under 25 by the tutor who has caused injury and that no law can be applied.
Aetatem Ob – It gives them 25 and older that present a request because of the public. Ob absentia – To the creditors of a person who is absent for a public event. Ob deminutiem capite. Ob creditorem fraud.
The in integrum restitutiones are requested by the person who has suffered injury or their inheritance, usually within one year after the impediment has ceased.
3 – Missions in Possesionem
Missions in possesionem is an act of the judge by which they authorize a person to take property from another person. This can be seen from a conservative or sale perspective. Usually, it is provisional and divided between enactment and entretale. It may involve all heritage, a heritage unit, or a certain thing.
There are two types:
- One person to keep one thing – Rei servendae cause.
- Another thing to sell – Venditionem causam.
4 – Stipulation Praetoria
Stipulation praetoria is instructed to perform normally the Praetor orders as collateral. This figure also appears in the Praetor’s edict and may require putting it right in fines or missio possesionem.