THE FORMULARY PROCEDURE

In the later Republic, with Rome expanding rapidly both politically and economically, the high degree of formality of the legis actiones was found inconvenient. This formality made it unsuited to the resolution of commer­cial disputes, in particular.

The peregrine praetor was responsible for litigation involving non­citizens. Rome’s expansion brought many such people into Rome, often as merchants. Such people needed a convenient form of procedure for the resolution of disputes, and the legis actiones were not available to non­citizens anyway. The peregrine praetor accordingly developed a new type of procedure, known as the formulary procedure. This substituted for the legis actiones standardised written statements of claim, known as formulae. This was found so much an improvement that this procedure was adopted for disputes between citizens. The use of the formulary procedure by citizens was confirmed by the lex Aebutia, enacted around 150 bc. It was this new procedure that allowed the praetors to develop the ius honorarium to supple­ment the civil law (see Chapter 2).

Under the formulary procedure, litigation continued to be a three-stage process.

The oral summons

As with the legis actiones, the formulary procedure was initiated by an oral summons, giving notice of the nature of the claim. The party against whom the action was being raised had to appear personally in order for the action to proceed, but he could avoid doing this immediately in one of two ways. This first of these was, as with the legis actiones procedure, finding a vindex to act as guarantor of appearance at a specified later date. The alternative was a vadimonium, which was a binding promise to appear at a later date, providing for security for appearance and a penalty for failure to appear.

It was still for the party raising the action to get his opponent to court. However, the praetor would now assist in this in various ways. For example, the praetor might now order the seizure of the estate of the non-appearing party. Physical compulsion to attend would now be very much the last resort. There is, therefore, a move here away from the idea of litigation as a private, voluntary procedure.

The preliminary hearing

As with the legis actiones procedure, the next stage was a preliminary hearing before the praetor. However, this was conducted in a different manner.

In the formulary procedure, the party raising the action would appear with a draft formula, stating the grounds of the claim, in a standardised form taken from the praetor’s edict. The praetor would sometimes be persuaded to allow a new formula to deal with new facts, but this would be very much the exception.

The draft formula was worded as an instruction to the judge to try the case and issue a judgement accordingly. It began with the appointment of the judge (the nominatio), followed by a statement of what was being claimed (the intentio). In cases where the judge had discretion as to the award he made, this would be accompanied by a demonstratio, outlining the facts on which the claim was based. The final clause was the condemnatio, directing the judge either to condemn or to absolve the party defending the action. The draft formula would then be subject to a process of negotiation. If the party defending the action wanted to raise a defence (exceptio), this would be inserted in the formula. The other party could, if desired, insert a response (replicatio) to the defence. Litis contestatio was reached when the formula was accepted by both parties.

A sample formula is as follows:

“Let Titius be judge. If it appears that Numerius Negidius should pay Aulus Agerius 100 denarii, then, if there is no agreement between Aulus Agerius and Numerius Negidius that the sum should not be sued for, or if there has been any fraud on the part of Numerius Negidius, you, judge, condemn Numerius Negidius to Aulus Agerius for 100 denarii; otherwise absolve him.” (P du Plessis, Borkowski’s Textbook on Roman Law (5th edn), 3.3.2.3)

Titius is the stock name for the judge. Aulus Agerius and Numerius Negidius are the stock names for, respectively, the party pursuing and the party defending the action.

It can be seen in this example that Aulus Agerius is suing for payment of a specific sum of money. The part beginning “If it appears” is the intentio. The judge has no discretion as to what to award here: he either awards 100 denarii or he awards nothing. Accordingly, there is no demonstratio. The part beginning “you, judge” is the condemnatio.

It can also be seen here that the draft formula has been amended by the addition of an exceptio and a replicatio. Numerius is defending the action by admitting the debt existed, but arguing that there was an agreement between the parties that the debt would not be sued for. Aulus is responding by admitting this agreement, but alleging that Numerius obtained it by fraud.

Sometimes matters could be resolved at this stage. In some cases, the praetor could issue an interdict dealing with an interim matter, in much the same way as with an interim interdict in modern Scots law. The term “interdict” in modern law, however, has a narrower meaning, relating only to prohibitions on some action. The Roman interdicts could also require some action. A prominent example was the possessory interdict, whereby, as we have seen, the praetor awarded interim possession of property. If possession was awarded to the party raising the action, there might be no need for any further procedure. Otherwise, the matter would proceed to a hearing before a judge.

The hearing before the judge

Under the formulary procedure, the hearing before the judge proceeded in much the same way as it had under the legis actiones procedure, with few rules of evidence or procedure. At the end of the hearing, the judge would issue his judgement, which was subject to no appeal, although, as we saw in Chapter 9, a judge who acted improperly might be subject to quasi- delictual liability.

Execution

The methods for enforcement ofjudgements that had been used under the legis actiones procedure were not abolished with the advent of the formulary procedure. However, additional methods of enforcement were introduced.

As before, the debtor had thirty days to satisfy the judgement. If this was not done, the creditor had then to raise a new action, on the judgement, known as an actio iudicati.

Bonorum venditio (sale of goods) was introduced in the late Republic. The praetor would allow the creditor to seize the debtor’s property. Unlike the older pignoris capio, this process ended in the sale of the property at auction. To discourage insolvency, the procedure also resulted in infamia (a form of legal disgrace, with various consequences) and the debtor remained liable for any part of the debt not satisfied by the auction.

An alternative to this was cessio bonorum (surrender of goods), which did not result in infamia. As the name suggests, this process was initiated voluntarily by the debtor. This was, however, only allowed at the praetor’s discretion, and only where the praetor could be satisfied that the debtor had genuine assets and that the debtor’s inability to comply with the judgement was the result of misfortune.