CHAPTER VII ACTIONS (De actionibus) I.

CIVIL PROCEDURE Action - RIGHT OF SUING before a judge for that which is DUE a person. Three (3) Principal Systems: 1. Legis Actiones - procedure fixed by Statutory law. 2. Formulary Procedure 3. Extra Ordinem Procedure Legis Actio - characterized by ritualism with religious significance. Two (2) parts of Legis Actio: 1. In jure - ritualism. - under the control of a MAGISTRATE. 2. Under the control of an iudex or fact finder. Kinds of Actions: 1. As to BASIS: A. Actio in rem (REAL Actions) - A person claims against the WHOLE WORLD, a thing corporeal or incorporeal as his. B. Action in personam (PERSONAL Action) - brought against a PARTICULAR PERSON by virtue of his liability on an obligation. C. Mixtae (MIXED Action) - partly real and partly personal. Some of the Actio in rem (Real Actions): 1. Vindicatio - asserted or vindicated his TITLE to a thing against the WHOLE WORLD. 2. Actio Confesoria - action bringing a CLAIM as to the EXISTENCE of a servitude and seeking its enforcement.

3. Negutoria - action brought by an OWNER of a PROPERTY for the purpose of reclaiming a servitude over it. 4. Petitio Hereditatis - action claiming his INHERITANCE. Five (5) Kind of Real Actions instituted by the Praetor: 1. Actio Publiciana - An individual exercising usucapio has LOST POSSESSION and was allowed by the PRAETOR to file a suit as if the continuity has never been broken. 2. Rescissoria - usucapio was rescinded. 3. Actio Pauliana - action to RESCIND a sale of property made for the purpose of defrauding creditors. 4. Actio Serviana - to get possession of some properties of a FARMER which are held as PLEDGE to secure the rent of the land. 5. Actio Quasi- Serviana - action where CREDITORS SUE for things pledged or mortgaged to them. Actions introduced by the Praetor: 1. Actio de constituta pecunia - to ENFORCE the PACT made for the payment of a sum already due. 2. Actio receptititia - action given against BANKERS (argentarii) who promised to satisfy the demands of a creditor of one of their customers. 3. Actio de peculio - action against FATHERS and MASTERS who are liable to the extent of the peculium of their sons in ??? or slaves for the obligations they have contracted. 4. De jure jurando - action for the purpose of ASCERTAINING whether a party to a suit, when challenged to do so, had sworn that the facts on which he predicated his claim or defense were true. 2. According to ORIGIN: A. Civil - which arise jus civile. B. Praetorian - enforceable by magisterial decree. 3. According to the POWERS given to the JUDGE: A. Bona fidei - the magistrate determined the rights of the parties in the light of equitable consideration: 1. empti and venditi - purchase and sale.

2. locati and conducti - management of affairs of another without agreement. 3. negotiorum gestorum - in negotiorum gestio. 4. mandati in mandatum - to do an act for another. 5. depositi- in deposits. 6. pro socio - in partnership. 7. tutela - in tutorship and guardianship. 8. commodati- in commodatum. 9. pigneraticia - in pledge. 10. commum dividundo - in division of properties owned in common. 11. hereditatis petitio - in recovery of inheritance. 12. familia erscicundae - in partition among heirs. B. Stricti juris - the parties were bound by means of a stipulation to the strict performance of their corresponding obligation. C. Actiones arbitrariae - the magistrate issued an order with defendant to do something or make the restitutio. 4. As to FORM: A. Directa - the intentio of the formula appeared in its original form as set out in the law creating it or in the edict of the praetor. B. Utilis - the magistrate alters the terms of the formula in order to suit the facts of the case. 5. As to OBJECT to be RECOVERED: Simplum - value of the thing in litigation is what is claimed for. Duplum - value sought to be recovered is twice that of the object in litigation. Actio rei persequendae causa - plaintiff seeks to recover a definite thing. Persona persequendae causa - plaintiff seeks the imposition of a penalty upon the defendant. Action Mixtae - both the recovery of the thing and the imposition of a penalty upon the defendant were sought.

6. As to LIABILITY: A. Directa - brought against a person on the basis of his personal liability.

B. Adjectitia Qualitatis - brought against an individual by reason of a liability caused by a person related to him. C. De pauperis - action against the owner of an animal that caused damage. 7. As to PRESCRIPTION: GR: Senatusconsultum/ Constitution - perpetual; no limit to the time which they ought to be brought. Praetorian Actions - temporales; barred if not brought within a certain period. (annus utilis/ annually). XPN: Actions given to bonorum possessor, everyong placed in loco heredis, and also the praetorian action for furtum manifestum were perpetual. Exceptions (De Exceptionibus) Exceptions - means of defense for those against whom an action is brought, for it often happens that the action of the plaintiff may be unjust as regards the person against whom it is brought. Confesi - a defendant in action for a sum of money admitted his liability. Litis contestatio - agreement between parties to a litigation (lis) to submit their dispute to judex. Plus petitio - claiming too much in amount or too soon resulted in the loss of right of action or prevented another action. Interdicts (De Interdicts) Interdicts - ORDERS issued by the PRAETOR in the exercise of his MAGISTERIAL FUNCTIONS, ordering or prohibiting something to be done. - were populare, it is applicable to anyone and privatae, or those appreciable only to particular persons or particular things. - are prohibitoria if they forbade something to be done. Restitutory Interdicts - the praetor orders something to be restored to a bonorum possessor. Exhibitory Interdicts - the praetor orders the production of a person or object. Acipiscendae/ Reciperandae - interdicts given to acquire or retake something. Retinandi - interdicts to retain something.

Restitutio in integrum - order called by a praetor after injury to rescind a transaction which had prejudiced the legal position of the applicant and to restore the former position of the parties (status quo ante). II. CRIMINAL PROCEDURE A. Republican Period Consuls - took charge of the trial of cases. Comitia Centuriata -acted as court for the people. Quaestio - system of investigation of a crime introduced. Quaestio pecuniae repe-tundoe - court; composed of judges according to the number required in the particular law violated. B. Imperial Period Judicia Publica - court. Praefectus urbis - exercised plenary jurisdiction over all offenses committed within the city and suburbs. NOTE: In order to prevent RECKLESS or UNJUST LAWSUITS, pecuniary penalties or sometimes infliction of infamy were imposed. Plaintiff was RESTRAINED from recklessly bringing an action not only of being calumny. The UNSUCCESSFUL PLAINTIFF, even if he had honestly brought the action, was made to pay a tenth of what he claimed. Judiciary (De Officio Judicis) Roman law also imposed PENALTIES on JUDGES who decide cases contrary to law, the constitutions or the customary usage. During imperial regime, the Emperor was the SUPREME JUDGE of the APPEAL. Emperor HADRIAN made appeal to the SENATE final. Public Prosecutions (De Publicis Judiciis) Public Prosecutions (publici judicia) - actions which may be generally instituted by any citizen. (GR) Persons EXCLUDED from bringing a Criminal Action:

1. injury complained of was done to themselves or near relations. 2. Below the age of puberty. 3. Made infamous by a judicial sentence. 4. So poor as not to possess fifty aurei. Lex Julia de Adulteris - death penalty was imposed on those guilty of ADULTERY and those who give themselves up to LEWDNESS with their own sex. Lex Cornelia de sicariis - striking with the sworn of VENGEANCE, MURDERERS and those armed with a TELUM for the purpose of KILLING A MAN. - by HATEFUL ACTs, use POISONS or MAGIC CHARMS to KILL MEN or publicly sell HURTFUL DRUGS. Lex Pompeia de paricidiis - anyone who HASTENED the DEATH of a PARENT or CHILD, or any other relation included in PARRICIDE, and whoever is an ACCOMPLICE of the crime. Lex Cornelia de falsis - punishes anyone who has written, sealed or substituted a false testament, or any other instrument, or shall have made, or impressed a false seal, knowingly and maliciously. Lex Julia de vi publica seuprivata - punished those who are guilty of VIOLENCE. Lex Julia peculatus - punished those who have stolen public money or property or anything sacred or religious. Lex Julia de ambitus - punished those who sought OFFICES with the ILLEGAL METHODS. Lex Julia Repentundarum - punished magistrates or judges receiving bribes. Lex Julia de annona - made to REPRESS combination for heightening prices of provisions. Lex Julia de residuiis - punish those who gave an INCOMPLETE ACCOUNT of a misappropriated public money committed to their charge. Lex Julia Magistalis - subject to a punishment of DEATH and of INFAMY all who attempt anything against the EMPEROR or STATE. - the DESIGN, without any overt act, was enough to sustain the charge.