The Formulary Procedure

(1) The Emergence of the Formulary Procedure

We have seen that the legis actiones suffered from excessive formality, with the result that it was all too easy to lose a case through a minor procedural error, without regard to the justice of the claim.

(2) Initiating the Action

The summons operated in much the same way under the formulary procedure as it had under the legis actiones. It was still an oral summons, in which notice was given of what was being claimed. This last was essential, because it allowed the defender to decide whether to defend the claim or try to settle it, and to have time to prepare any defence that was to be made.^[134] Submission to litigation remained in principle voluntary, although it was still the case that the defender could be brought to court by force.

The defender could agree to go immediately before the praetor, but there were alternative options. As under the legis· actiones, the defender could provide a vindex to guarantee future appearance. Another course of action was to give a vadimonium. This term was already in use under the legis actiones, as a promise to reappear before the magistrate orjudge after an adjournment. Under the formu­lary procedure, the same term was used for a promise to appear for proceedings to be initiated. This, it appears, was not so much a replacement for in ius vocatio as a promise to appear at a particular place and time so that in ius vocatio could be made.^[136]

(3) The Preliminary Hearing

(a) The Formula

It no doubt often happened that a dispute was settled before or at this stage.^[137] If this did not happen, the main function of the hearing before the praetor was to establish what the issues were that the judge was to determine. These would then be embodied in a formula, which was the written instruction to the judge to try the case. The starting point would normally^[138] be one of the many draft formulae laid out in an edict issued by the urban praetor at the beginning of his year in office. The draft formula could then be adapted to take account of the particular issues arising in an individual case. There were many of these draftformulae, each concerned with different situations. The simplest came in three parts: nominatio, intentio and either condemnatio or adiudicatio. Every formula had to contain at least these three.

The first part of the formula was the nominatio. This was the appointment of the judge, in the form: ‘Let Titius be judge.’ The rest of the formula was then in the form of an instruction to the judge to try the case.

The intentio stated what was claimed by the pursuer.^[139] In the examples we are given in the Roman texts, stock names are used: the pursuer is called Aulus Agerius and the defender Numerius Negidius. The first of these names is derived from the verb agere^ to pursue an action, and the second from the verb negare^ to deny. The intentio was in the following form: ‘If it appears that Numerius Negidius ought to pay to Aulus Agerius 10,000 sesterces...'

The condemnatio came at the end, and authorised the judge either to condemn or absolve the defender.^[140] In the draft formula, it would follow on from the inten­tio, as in the following: ‘you, judge, condemn Numerius Negidius to pay Aulus Agerius 10,000 sesterces. If it does not so appear, absolve him.' Unlike the posi­tion under the legis actiones, condemnation under the formulary procedure was always for a sum of money. This was the case even where something other than a money debt was at issue: in such a case, the judge would condemn according to his valuation.^[141] The amount stated could be a definite or an indefinite sum.^[142] Where the sum sued for was indefinite, a limitation on the amount to be awarded (called a taxatio) could be included.^[143]

A simple formula, then, with just nominatio, intentio and condemnatio, would look something like this:

Let Titius be judge. If it appears that Numerius Negidius ought to pay to Aulus Agerius 10,000 sesterces, then you, judge, condemn Numerius Negidius to pay to Aulus Agerius 10,000 sesterces. If it does not so appear, absolve him.

Instead of a condemnatio, an adiudicatio could be used in two circumstances, namely where the judge is being asked to assign property to one or other party or where the action is purely declaratory.^[144] An example of the first of those two circum­stances would be an action raised by a co-owner of property for division of that property. An example of the second would be where there is a dispute over ownership of an item of property, and the judge is being asked simply to adjudi­cate on which of the parties is owner.

Other clauses were possible, though not found in every case.^[145] Where the pursuer was seeking damages of an amount to be set according to the judge's dis­cretion,^[146] a demonstratio would be inserted before the intentio to outline the subject matter of the action.^[147] An example would be: ‘Whereas Aulus Agerius sold the slave to Numerius Negidius...'

If the defender wanted simply to deny the factual or legal basis of the pur­suer's claim, nothing more was needed: the formula directed the judge to find in the pursuer's favour only if the judge found to be due what was claimed to be due.

Sometimes, though, the defender would want to rely on some specific defence (exceptâ„¢), for example that the pursuer had agreed not to sue. Appropriate wording would be added to the formula, after the intentio, to reflect this. The pursuer might then respond to this with a replicatio, for example that the agreement not to sue had been induced by fraud. Aformula with exceptio and replicatio might look like this:

Let Titius be judge. If it appears that Numerius Negidius ought to pay to Aulus Agerius 10,000 sesterces, and there was no agreement between Aulus Agerius and Numerius Negidius that the sum should not be sued for, or that agreement was induced by fraud, then you, judge, condemn Numerius Negidius to pay to Aulus Agerius 10,000 sesterces. If it does not so appear, absolve him.

The finalisedformula then laid out the legal issues that the judge was to determine.

Under the formulary procedure, there was for the first time the general ability to act through a representative (procurator). The name of the procurator would be inserted into the formula in place of that of the party he was representing. The procurator therefore became party to the action, in place of the principal. The principal could, however, enforce the judgment.

When the formula was finalised, including the appointment of the judge, the defender formally accepted the formula.

(b) Praetorian Remedies

Under the formulary system, a number of remedies were developed that could be awarded by the praetor. For example, among the most important of these were the possessory interdicts. These are considered in detail in Chapter 10^[150] but, in brief, an interdict was an order by the praetor that something should be done or not done, and the possessory interdicts worked to regulate interim possession of property that was in dispute. A possessory interdict did not formally determine the question of ownership, but was highly advantageous to the party in whose favour the interdict was granted. Other examples of praetorian remedies include restitutio in integrum (an order for matters to be restored to their original state, for example in cases of fraud or coercion), missio in possessionem (an order authorising the taking of possession of another person's property) and praetorian stipulations (formal promises made by parties to proceedings).

(4) The Hearing before the Judge

In general terms, the hearing before thejudge was much the same under the formulary procedure as it had been with the legis actiones. It was still relatively unregulated, with few rules of evidence, and there was no system of appeals.

(5) Execution of Judgments

If the pursuer was successful before the judge, the defender would of course be obliged to comply with whatever the judge had ordered. As under the legis actiones, though, the pursuer had to wait thirty days before any action could be taken to enforce the judge's order.

The procedure of manus iniectio was still available. However, other options also became available.

(a) Bonorum Venditio

Bonorum venditio can be translated as ‘sale of [the debtor's] property', and is a pro­cedure that was introduced by the praetor in the late Republic. It began with a missio in possessionem, by which the creditor was authorised by the praetor to seize possession of the debtor's property. There would then follow a period of thirty days, during which the matter was to be advertised.^[151] This allowed other credi­tors to come forward and make their own claims. No doubt it was also often used by the debtor to scrape together the money needed for the sale to be called off, whether from friends or family or other sources.

The next step was for the creditors to meet and appoint one of their number to act as a manager (magister bonorum) to organise the sale,^[152] usually by auction. The debtor's property would be sold to the highest bidder.^[153] The debtor, though, remained liable for any unpaid part of the debts owed, and in addition incurred infamia.

This was an intentionally harsh procedure, and reflected the stigma of bank­ruptcy. There was an alternative procedure for high-status individuals, not involv­ing infamia, by which the praetor would appoint a curator to sell off sufficient property to cover the debts.^[154]

(b) Cessio Bonorum

The final possibility, introduced under the emperor Augustus, was unusual in that it was sought by the debtor rather than the creditor. This was the cessio bonorum, a voluntary surrender of the defender’s assets. This was only available where the debtor had genuine assets and had become bankrupt through misfortune. It allowed the debtor to avoid incurring infamia and to avoid the harsher procedures for debt enforcement that we have seen above.

There is therefore a distinction being made here between blameworthy bank­rupts and blameless bankrupts. The same distinction was adopted in Scots law, along with the name cessio bonorum, although neither has survived into the current law.^[155]

D.