Chapter 3 Revision sheet

Roman litigation

Instructions:

Three separate systems of procedure are discussed in this chapter. They follow chronologically from earliest to latest. While there may be a temptation to focus only on the formulary procedure (since the majority of the rules of law mentioned in this book would have operated under this procedure), it is important also to look at the system of procedure that came before it (the actions at law) and the system of procedure that replaced it (the cognitio). When comparing the procedures, you will notice that they are related and that certain elements are retained throughout. Try to identify these common elements.

Aims:

The function of this chapter is to provide you with an overview of the different systems of procedure operating in Roman courts during different periods. When revising this chapter, it may seem somewhat technical and removed from the rules of law discussed in the remainder of the book, but the two are in fact very much related and it is vital that you form a basic understanding of Roman civil procedure if you wish to understand the rules of Roman law.

One final point about the formulary procedure: Roman law was a system of actions. One could only enforce a right in a Roman court if there was an appropriate action available to enforce said right. Each action had a formula. Thus, in order to understand the actions mentioned in this textbook, one must reflect on the relevant formula for each action and the elements that needed to be proven in order to succeed with said action. These elements are described as the ‘essentials’ in discussions in Borkowski’s textbook.

Important dates:

The Monarchy [Regal Period]: c 753 – 510 BC
The Republic: 509 – 27 BC
The Empire: 27 BC – 476 AD (West), - 1453 AD (East)

Important statutes mentioned:

Law of the Twelve Tables 451 – 450 BC
Lex Poetelia 326 BC
Lex Aebutia c. 150 BC
Lex Cornelia (concerning the edict of the praetors) 67 BC

Overview:

Focus on the following key facts when revising this chapter

  • Reflect on the perils involved in Roman litigation.
    • Disparity of social status of the parties to the lawsuit.
    • Representation by advocates and the public nature of the Roman lawsuit.

The Monarchy [Regal Period]

  • No information about the system of procedure.
  • Note that some of the actions of law predate the Twelve Tables and therefore must logically have arisen during this period.
  • Compare the powers of the Kings and the senate as well as the sources of law prevalent during this period to form an approximation of the settlement of disputes during this period.

The Republic

  • This period is one of two halves. The first part of the Republic until the successful conclusion of the Second Punic War is dominated by the actions at law system of procedure. The second part is dominated by the formulary procedure and the decline of the actions at law system until its formal abolition under Augustus (although in reality it must have been largely a historical relic by then).
  • The actions at law
    • Their origins and formalistic nature.
    • The two-staged process [compare the formulary procedure].
    • The three actions at law that could be used to bring a claim and the formalistic nature of each.
    • The private nature of summons and the purpose of the first stage of the lawsuit [compare here the sources of law in the regal period and the pontifical monopoly over legal knowledge].
    • The legal significance of joiner of issue.
    • The execution of the judgement.
      • The two actions at law available.
      • The problems associated with these actions.
    • The formal abolition of the actions at law during the reign of Augustus.
  • The formulary system
    • The rise of the formulary system in the court of the peregrine praetor [compare the source of law during the republic].
    • The significance of the Lex Aebutia of c. 150 BC for the formulary system.
    • The two-staged process [compare the actions at law system].
    • The legal significance of the formula and its content [compare the sources of law during the republic and the ius honorarium of the praetor].
    • The relationship between the formula and the action in classical Roman law.
    • The major changes in the execution of the judgement brought about the restriction of the practice of nexum under the Lex Poetelia [see in detail bonorum possessio].
    • The importance of the rise of praetorian remedies and their impact on civil litigation.

The Empire

  • The official abolition of the actions at law system during the reign of Augustus.
  • The retention of the formulary system.
  • The addition of the cognitio system [in certain special cases – extra ordinem].
  • The coexistence of the formulary and cognitio system [especially the differences in the provinces].
  • The eventual abolition of the formulary system.
  • The main features of the cognitio system.
    • State-sanctioned appearance.
    • One-staged process.
    • What about the formula?
    • State-enforcement of the judgement.
    • The rise of a system of appeals.
***
Back to top