MOLDOVA STATE UNIVERSITY

FACULTY OF LAW

BUTORINA VALERIA

FORMS OF THE PROCESS IN ROMAN PRIVATE LAW

0421.1 – Law

Report

CHIȘINĂU – 2021
 CONTENTS

Introduction....................................................................................................................................3

I. The legis actio procedure............................................................................................................4

II. Formulary procedure..............................................................................................................10

III. Extraordinary procedure......................................................................................................15

Conclusion....................................................................................................................................16

Bibliography.................................................................................................................................17

2
 Introduction

This topic is quite relevant in the modern world, since Roman private law is indissolubly
connected with modern civil law as Roman civil procedure law can be definitely considered as
prototype of today’s civil procedures. However, procedural norms appear in the Roman legal
system in close connection with substantive norms (id est, the set of rules that governs how
members of a society are to behave) because the Romans viewed legal phenomena in terms of the
content of claims rather than the existence of certain rights, as is the case today.

The purpose of this report is to examine in detail civil procedure in Roman state through
three main stages of its historical development.

In order to achieve this goal, next important tasks were set:

1. The legis actio procedure and its two stages will be described, and five different types
of legis actiones will be analyzed.

2. The features of formulary process and its two phases will be studied, and the essence of
the formula and the effects of the litis contestatio will be discussed.

3. The extraordinary procedure will be examined and its important peculiarity will be
described.

Object of the study – civil processes in Roman private law.

Subject of the study – study of the conduct of three civil procedures in Roman private law.

When writing the report, the method of studying and analyzing the literature and other
sources on Roman private law was used.

3
I. The legis actio procedure

The legis actio1 procedure is considered the earliest form of Roman civil procedure. It
should be noted that, in the opinion of Pokrovsky I. A.2, the concept of legis actio should not
referred to statutes for the reason that is difficult to assume the existence at that time of such a
large number of laws that would regulate both the course of production and the civil proceedings
themselves with proper details. From his point of view, lege agere in ancient times meant simply
to act, to exercise the right in a lawful manner as opposed to illegal violence. 3 The process is
characterized by legis actio, which was a ritual elaborated by the pontiffs. This procedure was
conducted orally and divided into two stages. The first stage (in iure) proceeded before a consul
(or a pontiff) and, after the enactment of the Leges Liciniae Sextiae (367 BC), before the praetor.
The second stage (in iudicio) proceeded before a citizen appointed as the judge (iudex) by the
magistrate and the parties concerned.4

The legis actio had three main features that perfectly demonstrated the conditions in which
they have occurred, id est:

 judicial character – lies in the fact that the parties of the lawsuit were obliged to appear
before the magistrate and pronounce certain terms. The solemn terms that the parties pronounced
before the magistrate were called the formulas of legis actio;
 statutory character – the legis actio were provided by law, so the name of legis actio has
appeared, or actions of law that were based on statutes5;
 formal character - both the parties and the magistrate pronounced formulas and terms that
had to be observed with the utmost strictness. Solemn terms were formulated by the pontiffs in
accordance with the requirements of the law. Any deviation from the solemn formula
corresponding to a type of trial was punishable by loss of subjective right. If the language spoken
no longer corresponded to that used in the old laws, the parties were obliged to express themselves
in the archaic language; it was not allowed to change the gender of the noun either.6

1
An action based on law.
2
Joseph (Iosif) Alekseevitch Pokrovsky (1868 - 1920) was a Russian jurist, professor, Doctor of Roman Law.
3
Салогубова Е.В. Римский гражданский процесс. Москва: 1997.
4
Mousourakis George. Fundamentals of Roman Private Law. Auckland, 2012, p. 310
5
Gaius 4.11
6
Molcuț Emil. Drept privat roman. Terminologia juridică romană. București: Universul Juridic, 2011, p. 60
4
 The legis actio process usually began with summons of the defendant (reus) by three well-
known methods: in ius vocatio, extrajudicial vadimonium and condictio, after which the in iure
phase of process started.

In ius vocatio consists in subpoening the defendant, who is called to come before the
magistrate by pronouncing solemn words: in ius te voco (I call you before the magistrate). The
summons could not be made at the defendant's residence, since the residence of the roman citizen
was inviolable. If the defendant refused to appear before the magistrate, the plaintiff (actor) could
take him by the use of force, as soon as the defendant's refusal was found with witnesses. The
defendant could constitute a vindex, a guarantor, who promised to cause him to appear before the
magistrate at another time. If the defendant was hiding in order to avoid trial, the magistrate could
resort to coercive measures, granting the plaintiff a missio in possessionem7.

Vadimonium was a convention by which the parties set the date on which they would appear
before the magistrate.

Condictio was the summons by which the plaintiff called in jure the defendant peregrine.

The in iure phase. If both sides appeared before the magistrate, contradictory debates
began. Having come before the magistrate, the first to speak was the plaintiff, who expresses his
claims using solemn forms corresponding to the trial. Faced with these claims, the defendant could
adopt one of three possible attitudes: either to recognize the claims, or to deny, or not to defend
himself properly:

 First of all, he could recognize the claims made by the plaintiff, a recognition called
confesio in iure. The one who admitted was assimilated with the condemned according to the adage
confesus pro iudicato est. The one who recognizes is regarded as condemned. Naturally, in this
case, the process no longer passed into the second phase.
 Secondly, the defendant could deny the plaintiff's claims, while giving his contest to the
conduct of the trial, a denial called infitiatio8. In this case the trial went to the second phase in
iudicio and ended with a sentence of either conviction or exemption.
 Thirdly, the defendant could deny the plaintiff's claims, but not give his concurrence in the
conduct of the trial, a denial called non defensio uit obortet. This attitude on the part of the
defendant was a nagging one; he neither acknowledged the claims nor denied them, but neither
cooperated with the plaintiff nor with the magistrate, the praetor, in order to meet the procedural

7
Sending the plaintiff to the detention or possession of the defendant's property.
8
D.42.2.1
5
conditions and requirements. In this case, the defendant was assimilated with the convicted, and
the process no longer passed into the second phase.
As regards the competence of judicial magistrates in the legis actio process, the right of
judicial magistrates to hold a trial was called iurisdictio - jurisdiction, which was of two kinds:
iurisdictio contetiosa (or contentious) and iurisdictio voluntaria (or graceful). In the case of the
contentious jurisdiction, the interests of the parties were opposite, divergent and the process was
completed by passing a sentence of conviction or acquittal. In the case of the gracious
jurisdiction, the parties cooperated with the magistrate on the basis of a prior agreement in a
fictitious, simulated trial, because in the gracious jurisdiction, the interests of the parties were
common, convergent, and the parties in agreement with the magistrate simulated that they were
trying to obtain certain legal effects. The example of gracious jurisdiction was in iure cessio9.
Magistrates had the imperio right, which meant the commanding power of a superior
magistrate. In some Roman texts, a distinction is made between imperium merum and imperium
mixtum. Imperium merum was the power to command an army, and imperium mixtum
represented the right to organize a court. It is known that the praetor had exercised the most
important functions of the judiciary, while in the legis actio procedure engaged in the mechanical
activity, as he was in charge of whether the parties to pronounce the correct formulas of the formal
corresponding to the process which they hold, and in light of the claims of the plaintiff, he
pronounced each of the following words - do, dico, addico.
By the word do, or the formula do iudicem (I give you judge), the praetor confirms the
judge chosen by the parties, and if he pronounced this word, it meant that the process was going
into the second phase.
By the word dico, he provisionally assigned the object of the dispute to one of the parties,
following that after the sentence is handed down; the object is assigned definitively to the one who
won the trial.
By the word addico, the praetor ratifies the declaration of one party or the declaration of
both parties, thereby recognizing certain subjective rights. 10
If the defendant adopts the third position (non defensio uit obortet) from which the desire
to judge himself emerges, the last act of the in iure phase, called litis contestatio, automatically
started, after which the process passed into the second stage. Litis contestatio consisted in the
taking of witnesses who ascertained the will of the parties to stand trial and to obtain a sentence,
either of conviction, by the plaintiff, or of exemption, by the defendant.

9
Waiver before the magistrate. Fictitious process through which several legal operations were carried out, including
the transshipment of property. [1, p. 441]
10
Molcuț Emil. Cited work, p. 63
6
 The in iudicio phase. The second phase of the trial is no longer consensual, which means
that it was permissible to try in absentia11, since according to the Law of the Twelve Tables, the
judge waited until noon, and if one of the parties did not appear at the trial, he would win the case
of the party who appeared. However, if both sides appeared before the judge, contradictory debates
would begin in everyday language. Before the judge, the parties did not express themselves in
solemn words. The first time the plaintiff spoke, who affirmed his claims and administered the
evidence at his disposal, either records or witness evidence, but at that time there was no hierarchy
of evidence, so the records could be countered by witness evidence. In turn, the defendant
formulated his defense, also administering the evidence at his disposal. Possibly, in support of the
parties, lawyers could also intervene through their pleadings, but the Roman lawyers were not
legal representatives, for they did not participate in the trial instead of the parties, but came to their
support, through their pleadings, through the legal knowledge they had. After the judge hears the
statements of the parties, possibly also the pleadings of the lawyers, after assessing the
administered evidence, he forms an intimate conviction and pronounces a sentence of conviction
or dismissal. However, the Roman judge could refuse to pronounce the sentence, stating that for
him things are not clear. In this case, the parties returned to the praetor for the election of another
judge.12

Five different types of legis actiones are mentioned in the sources: the legis actio
sacramento, the legis actio per iudicis arbitrive postulationem, the legis actio per condictionem,
the legis actio per manus iniectionem, and the legis actio per pignoris capionem. The first three
were applied to resolve a dispute, whilst the last two were used to enforce the execution of a
judgement.13

The legis actio sacramento (action in the law by oath) was the earliest and most important
of the legis actiones. This action could be used to enforce either a real or a personal right and was
thus referred to respectively as legis actio sacramento in rem (action in the law by oath for a real
right) and legis actio sacramento in personam (action in the law by oath for a personal right).

In sacramentum in rem the property in dispute (or a token of the object if it was
immoveable) was presented before the magistrate and each party asserted ownership over it by
performing certain symbolic gestures and pronouncing prescribed formal words. An altercation
then ensued between the parties over their respective titles, and each party supported their
assertions by issuing an oath with a monetary sum staked on the outcome (sacramentum). An

11
While the person involved is not present.
12
Ibidem, p. 64
13
Mousourakis George. Cited work, p. 312
7
important note is that an issue was not created by assertion and denial, but by the two parties
asserting contradictory rights. The magistrate then produced an interim decision assigning
possession of the disputed object to one of the parties and demanding security from him. After
establishing the question at issue (litis contestatio), the iudex was nominated to try the case and
the in iure phase of the proceedings was thus completed.

Sacramentum in personam is the legis actio used for the purpose of valorizing the rights of
claim on amounts of money or on things. Although the forms of this type of trial are not known in
detail, we assume that before the magistrate there was a contradictory debate, after which the trial
passed into the second phase. As at sacramentum in rem, the sentence was pronounced indirectly.14

The legis actio per iudicis arbitrive postulationem (application for a judge or arbitrator)
takes the form of a contradictory debate before the magistrate, followed by a request to appoint a
judge or arbitrator. This court procedure was used for the purpose of valorizing claims arising from
the sponsio (solemn contract), for exiting the individual, as well as for valorizing the rights whose
subject matter had to be assessed by the judge by a litis aestimatio15. Iudicis arbitrive postulatio
is a more evolved law, since it does not start from the pretext of a bet, and the party who loses the
process is not sanctioned with the loss of a sum of money. On the other hand, the iudicis arbitrive
postulatio had a wider scope of application than the sacramentum in personam, which aimed only
claims with a well-determined object.16

The legis actio condictionem is a simplification of sacramentum in personam and applies

in two cases: in the matter of certa pecunia (a determined amount of money) and in the matter of
alia certa res (another determined thing). The work of the parties consisted of a contradictory
debate before the magistrate, after which, in the face of the defendant's negative answer, the
plaintiff ordered him to appear again in jure, within 30 days, for choosing a judge. The losing party
had to pay a sum of money as punishment, but not a fixed amount as in sacramentum in personam,
but a variable amount, depending on the value of the disputed object.

The legis actio manus injectionem (action in the law by the laying on of a hand) applied
to the execution of a judicial decision with a focus on the person of the judgment debtor and not
his property. The manus iniectio could be engaged against the party condemned (iudicatus) by the
iudex at the end of the in iudicio phase of the proceedings and who had failed to discharge his debt
within 30 days after the relevant decision, as well as against the party who acknowledged his debt

14
Molcuț Emil. Cited work, p. 67
15
The judge's assessment of the disputed subject in the case when the monetary value was not determined by formulas
or praetorian edicts.
16
Ibidem, p. 68
8
in the in iure phase (confessus pro iudicato habetur). If the condemned person refused to settle his
debt or failed to produce a guarantor (vindex), he was assigned by the magistrate to the creditor as
his prisoner for 60 days. During this time, the creditor proclaimed the debt sum on three successive
market days (nundinae). On the third occasion, if no one elected to release the debtor by paying
the debt he was reassigned to the creditor. The latter could then sell the debtor into slavery across
the Tiber river (trans Tiberium) or even, in early times, slay him.

The legis actio pignoris capionem (taking a pledge) was considered an enforcement law,
although it lacked judicial character. Pignoris capio was not subsequent to a trial, did not imply
the presence of the magistrate or even the presence of the debtor. In some cases, after pronouncing
certain solemn words in the presence of witnesses, the creditor could take an asset from the debtor's
estate. The creditor could not acquire that asset or alienate it, but if the debtor did not pay, he could
destroy it.

9
II. Formulary procedure

As elaborated previously, the earliest form of civil procedure in Roman law was the legis
actio, so called because the only actions allowed were those created by statutes (leges), or closely
adapted to the language of statutes by the pontiffs. Under the changed socio-economic conditions
of the late Republic, the legis actio system gradually fell into disfavour. This mainly derived from
its exaggerated formalism, and the prominence of a new and more flexible system: the formulary
(per formulam) procedure. The approval of the new process, which was undoubtedly greatly
facilitated by the activities of praetor peregrinus, took place gradually. The first stage, about which
we, in fact, know nothing, began with the adoption of the lex Aebutia, referring to the 2nd half of
the II century BC. This law probably allowed a new process as an additional to the legis actiones.
It became mandatory in accordance with one of the leges Iuliae iudiciariae (laws of Julius on
judicial proceedings) from 17 BC.17

In the context of the formulary procedure, the process continues to be conducted in two
phases (in iure and in iudicio), but some innovations have been introduced with regard to the
citation as well as with regard to the work of the parties. For instance, the arguments of the parties,
set out in a free form, turn out to be the efforts of the magistrate and the parties are concretized in
a formula containing instructions that the magistrate gives to the judge to resolve the disagreement.
The magistrate (praetor) is no longer a simple mediator in the litigation of the parties, but
cooperates with them and directs the process; he intervenes in the process — both in relation to
the parties and in relation to the judge, resorting to the weight of his imperium18.

In the formulary procedure, for the execution of each subjective right there is a distinct
action and each action had its own formula. The formula is a small trial instruction by which the
magistrate (praetor) shows the judge how to hear the case and to settle it. In practice, whenever
the praetor finds that the plaintiff's claims are legitimate, he issues him a formula, so that the
plaintiff could judge and capitalize on his claims by trial, by judicial means, which means that in
the formulary procedure any legitimate claim can be executed by trial.

17
Санфилиппо Чезаре. Курс римского частного права. Москва: Изд-во „БЕК”, 2000, стр. 100
18
Power of command. Praetors, consuls and dictators could exercise it. By virtue of this power, they had the right to
convene the people in assemblies and command the army.
10
 The formula has a structure consisting of four main parts (sine qua non19 conditions of the
very existence of the formula) and two accessory parts (their existence within the formula was not
mandatory, but they were introduced at the request of those who judged).

The main parts of the formula are intentio (intention), demonstratio (demonstration),
condemnatio (condemnation) and adiudicatio (adjudication).

The intentio formed the most important part of the formula as it set forth the precise claim
or demand of the plaintiff. It started with the phrase ‘si paret’ (‘if it appears’) or ‘quidquid paret’
(‘whatever it appears’). Depending on whether or not the object of the claim was clearly identified,
an intentio could be determined (certa) or undetermined (incerta). An example of an intentio certa
would read as follows: ‘If it appears that the defendant ought to pay the plaintiff the sum of 1000
sestercii...’ On the other hand, an intentio incerta would be worded in this manner: ‘Whatever it
appears that the defendant ought to pay to the plaintiff...’ In actions relating to the enforcement of
a personal right (actiones in personam), the intentio contained the names of both the plaintiff and
the defendant. In actions pertaining to the enforcement of a real right (actiones in rem) only the
name of the plaintiff appeared.

The demonstratio included the legal cause (source) of the plaintiff's claims (a contract, a
will, etc.)20.

The condemnatio delegated the judge power to condemn or acquit the defendant. It is
significant that the condemnatio was always directed at an amount of money (condemnatio
pecuniaria), which might be determined (certa) or undetermined (incerta). In the latter case, the
judge was authorized to use his discretion in specifying the amount of money owed.

The adiudicatio was a component of the formula that authorized the judge to effect a
division and to determine an award.21 It was usually worded in this style: ‘Whatever part ought to
be adjudged to any one of the parties, do you, judge, adjudge it.’

Besides the standard clauses outlined above, a formula also contained additional ones, such
as praescrisptiones (reservations) and exceptiones (defenses)22.

19
A necessary condition without which something is not possible.
20
G. 4. 40
21
G 4. 42.
22
Mousourakis George. Cited work, p. 321
11
 The praescriptio was an extraordinary clause that a litigant could elect to have inserted in
the formula (directly after the appointment of the judge and before the intentio) when he wished
to precisely limit the extent of the claim. Two kinds of praescriptiones were distinguished:

 The praescriptio pro actore (the praescriptio in favour of the claimant) was applied, for
instance, in a case where the plaintiff sued for an installment of a debt while retaining his right to
later sue for further installments.
 The praescriptio pro reus (the praescriptio in favour of the defendant) was applied, for
example, when the defendant wished to express the reservation that a decision in the present case
would have a prejudicial effect on the determination in a more important case.

The exception was a clause in the formula inserted by the defendant before the condemnatio
that contained an assertion that there were circumstances supporting a defence against the
plaintiff’s claim. For example, a defendant might assert that he owed the sum claimed by the
plaintiff but a special agreement entailed the plaintiff assuming the obligation not to sue for the
money. In such a case, the defendant’s objection would be inserted into the formula as a negative
condition: the judge may condemn the defendant ‘If there has not been an agreement that the
plaintiff will not bring an action’. Depending upon their period of operation, exceptions were
divided into peremptory or perpetual and dilatory or temporary23. A peremptory (peremptoria)
exception could be invoked without a time limitation (exceptio perpetua). If a party failed to raise
such an exception during the preparation of the relevant formula due to mistake, they could later
seek the insertion of an exception in the formula24. Dilatory or temporary defences, on the other
hand, could be raised only within a limited period of time or under certain circumstances.

The in iure phase. In the system of the formulary procedure, the process continues to be
conducted in two phases, but some innovations have been introduced with regard to the subpoena,
as well as with regard to the work of the parties and the praetor. In the matter of summons, the old
procedures have been maintained, in addition to which new ones have been introduced. Thus, the
praetor gave a special action against the defendant who, at the summons of the plaintiff, refuses to
come to trial. It was also against the one who was hiding so that a missio in possessionem could
not be cited, on the basis of which the plaintiff could sell the defendant's goods.

Due to the consensual nature of the trial, it was necessary for both parties to be present
before the magistrate. The debates were conducted in ordinary words, without the use of solemn
formulas and ritual gestures, as was the case in the procedure of legislations. To the plaintiff's

23
G 4. 120.
24
G 4. 125.
12
claims, as in the old procedure, the defendant could adopt three attitudes: to admit, deny or not
properly defend himself. In addition, it was accepted that in cases involving a determined amount
of money, the dispute should be resolved by taking an oath: either the plaintiff swears that he has
a claim or the defendant swears that he owes nothing (iusiurandum necessarium). After the
proceedings were concluded, depending on the nature of the case at issue and the claims of the
parties, the praetor granted the plaintiff the action or refused it. If the plaintiff's claims were found
to be well founded, the praetor would issue him a civil action, when there was an appropriate
action. When the edict did not include a suitable action, the praetor creates a new action (in factum),
drafted according to the elements of the dispute, thus giving the plaintiff the opportunity to
capitalize on his claims. Giving the action is equivalent to drafting the formula. After the formula
was drawn up, the last act took place before the magistrate, called litis contestatio.

Litis contestatio consisted of the sending of a copy of the formula or its dictation by the
applicant to the defendant25. Litis contestatio produced three effects: the extinguishing effect, the
creative effect and the fixing effect. The knowledge of the significance of these effects is of
particular importance for the understanding of Roman civil law, since their invocation by one of
the parties has some of the most serious consequences.

 Extinctive effect - after the litis contestatio took place, the right inferred by the plaintiff
injustice was extinguished. In some cases, the applicant's primitive right was extinguished by law
(ipso iure), while in others, by introducing a single exception in the formula (exceptionis ope).
 Creative effect creates in favor of the parties to the new law that was invariably on a sum
of money, since in the formative procedure, regardless of the nature or object of the original right,
the plaintiff acquired a sum of money, and in addition, create a court order for the right deducted
from the judgment.
 Fixative effect26 - at the time of litis contestatio, both the real elements (the statements of
the parties) and the personal elements (the identity of the parties and the judge) were definitively
established. By this, we must understand that the plaintiff could not claim before the judge
anything other than he claimed before the magistrate and that the process could only be tried
between the parties mentioned in the formula.

The in iudicio phase. The work of the parties before the judge was carried out, broadly
speaking, according to the rules known from the procedure of legislations. The evidence submitted
was assessed on the basis of the social position of the parties. In this regard, Aulus Gellius27 tells

25
G 4. 90.
26
G 4. 114.
27
A Roman author and grammarian, who was probably born and certainly brought up in Rome.
13
us that, being elected judge, he asked a jurisconsult for consultation, and he advised him to give
justice to the plaintiff, because he has a better social situation than that of the defendant. The post
meridiem praesenti litem addicito28 rule was maintained, but it received some mitigations,
allowing some reason to postpone the process.

In the old procedural system, the list of judges was confused with the list of senators.
Towards the end of the second century BC.C. E., In view of the influence that the Knights acquired
in political and economic life, the law Sempronia Judiciaria was given, by which they acquired
the right to be elected judges and members of the Equestrian Order. Emperor August divided the
judges into four categories, on the criterion of wealth.

28
In the afternoon, the judge will judge the discord of those present [2].
14
III. Extraordinary procedure

The formulary process that existed during the republic lasted for some time during the
empire, but it gradually squeezed out a new form of process - extraordinary. The distinctive
features of this process are as follows. The representative of state power is no longer an elected
praetor, but an appointed imperial official. Cases are decided in an order unusual for the previous
period (extra ordinem), id est an official (judicial magistrate) who examines the whole case from
beginning to end and decides the verdict himself, without transferring it to the judge. The two
stages of the process (in iure and in iudicio) are no longer here, so this is a one-stage, bureaucratic
process. It is worth noting that the extraordinary procedure is considered a prototype of modern
civil proceedings.

All the experience accumulated during the centuries-old practical activity of the praetors
and codified under Hadrian in the form of an "Eternal Edict", Edictum perpetuum, is an ius that is
in no way inferior to civil. Therefore, there is no longer any difference between civil and praetorian
claims, infactum and/or ius; there is no longer a "formula" in a special sense, with its separate parts
arranged in a certain order. Cases that previously turned out to be a reason for the direct
intervention of the magistrate, now turn out to be the basis for the imposition of ordinary lawsuits.

At the first historical stage of its existence, the extra ordinem procedure begins with an
evocatio, an order to the defendant to appear, issued by a magistrate or official and handed to the
defendant by the relevant service. Subsequently, it was replaced by litis denuntiatio (notice of
litigation), a kind of court summons drawn up by the plaintiff and served by an official. In a later
era, the so-called procedure per libellos ("through notes") came into use, which consists in a kind
of exchange of summonses between the plaintiff and the defendant. In the presence of the judge,
the plaintiff sets out his claim (narratio, litis contestatio in a new sense), and the defendant - his
excuses and possible counterclaims (contradictio), after which both parties submit an ius iurandum
de calumnia, in which they swear not to pursue litigation for the sole purpose of making a dispute.
Then the judge, having made an appropriate order, admits the evidence to consideration and
classifies them, evaluating them not according to his arbitrary impressions, but according to
precise legal criteria (such as: the testimony of one person cannot serve as evidence, the document
has superiority over the testimony of witnesses, etc.). After that, after the right is established, the
judge issues a ruling, which, as mentioned above, is characterized by an official character, the
possibility of appeal and binding enforcement.

15
 Conclusion

This report examined the conduct of three civil procedures in Roman private law, including
their main stages.

The purpose of this research work was achieved by performing the following objectives:

1. The legis actio civil procedure and its two phases were characterized with five main
categories of legis actiones.

2. The formulary procedure was analyzed, and the structure of the formula was explained,
and three effects of the litis contestatio were briefly characterized.

3 The conduct of the one-phased extraordinary process was depicted.

Each civil procedural system corresponded to three historical stages of the Roman state:
the legis actio process intrinsic to the old epoch, the formulary procedure – to the classical epoch,
and the extraordinary process – to the postclassical epoch.

The main feature of the legis actio and formulary processes is that they both were
conducted in two stages: in iure and in iudicio. The in iure phase was conducted before the
magistrate, and the phase in iudicio - before a judge. The magistrate and the judge were not two
distinct courts, but organs of one and the same trial process, therefore the phases in iure and in
iudicio were phases of one trial process, not the two distinct trials. As for extraordinary procedure,
it is characterized by disappearance of those two phases, the debates being conducted by one
person (judge), from the beginning to the end.

Taking into consideration all mentioned above, it can be concluded that civil procedures
have considerably influenced the development of Roman private law, so that they became a
preimage of modern civil procedures.

16
 Bibliography

1. Information from the website https://bzbook.ru/Rimskoe-pravo-konspekt-lekczij-1.7.html

(visited on 28.11.2021)
2. Information from the website
https://intelros.ru/2007/12/23/oleg_kharkhordin_byla_li_res_publica_veshhju.html
(visited on 3.12.2021)
3. Molcuț Emil. Drept privat roman. Terminologia juridică romană. București: Universul
Juridic, 2011
4. Mousourakis George. Fundamentals of Roman Private Law. Auckland: 2012
5. Пухан Иво, Поленак-Акимовская Мирьяна. Римское право (перевод с
македонского). Москва: «Зерцало-М», 2003.
6. Салогубова Е.В. Римский гражданский процесс. Москва: 1997.
7. Санфилиппо Чезаре. Курс римского частного права. Москва: Изд-во „БЕК”, 2000.

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