UNIVERSITATEA DE STAT DIN MOLDOVA

FACULTATEA DE DREPT

REFERENCE:
EXERCISE AND DEFENSE OF RIGHTS. ROMAN CIVIL PROCEDURE :
FORMAL PROCEDURE AND EXTRAORDINARY PROCEDURE

OBJECT : PRIVATE ROMAN LAW

PROFESSOR : NATALIA BACALU
STUDENT : GRIDNEV OCTAVIAN (2206)

2022
 CONTENTS
INTRODUCTION. EXERCISE AND DEFENSE OF RIGHTS……………………….
PROCEDURAL SYSTEMS………………………………………………………........
FORMAL PROCEDURE................................................................................................
- STRUCTURE OF THE FORMULA………………….................................................
-DEVELOPMENT OF THE PROCESS. PHASE IN "IURE"…………………………
-THE "JUDGMENT" PHASE………………………………………………………….
-EFFECTS OF THE SENTENCE………………………………………………………
-METHODS OF ATTACK AGAINST THE SENTENCE…………………………….
-REPRESENTATION IN JUSTICE................................................................................
EXTRAORDINARY PROCEDURE…………………………………………………...
- FORMS OF JUDGMENT PROCEDURE…………………………………………….
- THE JUDGMENT, ITS EXECUTION AND THE APPEAL…………………….......
CONCLUSION…………………………………………………………………………
BIBLIOGRAPHY……………………………………………………………………...
The meaning of exercising and defending rights. Introduction. Originally, in the
gentile, pre-state society, the violation of the interests of individuals gave rise to a
confrontation between those involved in the litigation. That is, if the injured party did
not receive satisfaction from the guilty party, then he would do justice to himself as
he saw fit and according to his own powers, through revenge, which was often
disproportionate. Later, the method of resolving the differences between the parties
evolved, through the appearance of the law of talion which brought a certain balance
by applying the principle of an eye for an eye, a tooth for a tooth. This means was
deeply rooted in the customs of gentile society becoming customs, laws of primitive
settlement of disputes. The law of talioni in turn was overcome and gradually
replaced by private arbitration. Private arbitration involved debating the conflict
between the litigating parties in front of a third party, who, being chosen by them, had
to resolve the case by establishing both their rights and their obligations. However,
the primitive means of resolving conflicts still existed, and they characterize the
period of transition from gentile society to that organized politically in the form of the
state. We can only talk about a procedure in the sense of a system, a set of rules that
regulate the conduct of litigation, together with the apparition of the state. The role of
the state in the implementation of justice has grown continuously, this actually
constituted public justice, which was what re-specialized the state, Private Justice.
But, there has always been a private justice that allowed the valorization of subjective
rights through its own means. Defensive private justice. The aggressive or offensive
one constituted the modality of a private person was carried out in two ways, through
aggressive private justice and personal justice to realize their claims through their
own means, and the defensive one was the modality of a person to defend himself
against someone's claims through his own means . Private defensive justice was
always allowed in the Roman state, according to the principle ‘’vim vi repellere licet’’
(violence can be removed by violence). Private justice came to meet the interests of
the rich and powerful who, in certain circumstances, preferred to valorize their claims
without resorting to the judicial bodies. In order to prohibit aggressive private justice,
repressive measures were taken through the following normative acts: 1. ‘’Lex Iulia
de vi publica et privata’’ - Iulia Law regarding public and private violence, which was
given during the time of Emperor Augustus and sanctioned with a public punishment
the creditor who, by violence, took an asset from the patrimony of his debtor. 2.
‘’Decretum Divi Marcii’’ - given by Marcus Aurelius, punishes with the loss of the
claim the creditor who, even without using violence, takes an asset from his debtor. 3.
‘’The Constitution of 389 CE. of Valentinian II’’ - sanctioned with the loss of the
property right to that owner who came into possession of his property by violent
means. If the person who came into possession of the property
1
in such a way was not the owner, he was obliged to pay the price of the good.
Limiting aggressive private justice was aimed at organizing and consolidating state
justice, in which the exercise and defense of subjective rights can take place by
submitting concrete requirements to the competent body with judicial powers. The
demands thus submitted took the form of a legal action. By action – ‘’actio’’ - was
meant a procedural means available to a person whose subjective right was violated,
for its valorization. In its essence, the action is a requirement of the person, addressed
to a competent state body, regarding the valorization or defense of a subjective right.
The person who brings the action is called the plaintiff. The person to whom the
action is brought is called the defendant. The action, in this way, is the means by
which the plaintiff's rights are valued and defended. Characteristic of Romanian law is
the fact that it is considered to be a right of actions, in the sense that a person has a
subjective right only if the law recognizes an action that he can bring to court. The
defendant must also be granted the opportunity to defend himself against the demands
of the plaintiff in the action addressed to the judge. The procedural remedy available
to the defendant was called ‘’exceptio’’. It represents the defendant's objections to the
plaintiff's claims, by which these claims were removed.
 2
Civil procedure (civil procedural law) includes all legal rules that determine the order
of examination and resolution of civil disputes by the court. The Roman civil
procedure includes all the rules that regulate the conduct of processes regarding
freedom, property, inheritance and the valorization of debt rights. The rules of
procedural law experienced an extremely complex evolution, an evolution that left its
mark on the entire material law. Procedural law had an overwhelming influence on
Romanian law, more concretely on Roman civil law, which, as is known, evolved
procedurally as a law of actions. Actions were considered to be the dynamic part of
law. With their help, the notions, categories and principles of Roman civil law, which
constituted the static part, can be understood much more easily. The procedural
evolution of civil law is not accidental, but reflects certain realities specific to Roman
society. The transformations undergone by the Roman economic system were
reflected in the physiognomy of law, which had to follow a certain course and
respond to certain purposes. The Roman state capitalized to the highest degree the
means of civil procedure, as instruments for realizing the norms of private law. Due to
this fact, civil procedure must be studied before civil law, but not placed at the end of
the textbook, as was done for a long time. In order to arrive at the emergence,
crystallization and perfection of this mechanism called procedure, several stages were
completed. Procedural systems. The evolution of Roman private law has known three
procedural systems: the legislative procedure, characteristic of the old era of the
evolution of Roman private law, the formal procedure, characteristic of the classical
era, and the extraordinary procedure, characteristic of the post-classical era. Of the
three procedural systems, the legislative and formal procedures are characterized by
dividing the process into two phases: in "iure" and in "iudicio". The "in iure" phase
took place in front of the magistrate, and the "iudicio" phase in front of a judge. The
magistrate and the judge were not two distinct courts, but organs of one and the same
trial, and the phases in "iure" and "iudicio" were phases of a trial and not two distinct
trials. The extraordinary procedure is characterized by the disappearance of the
division of the process into two phases, the debates being led by a single person
(judge), from beginning to end.
 3
Form procedure. Starting with the penultimate century of the Republic's existence,
the legislation system entered a period of obvious decline, justified by several
categories of factors. A first category of factors, and perhaps the most important, is
represented by factors of an economic nature, namely the intensification of the pace as
well as the considerable diversification of economic exchanges. From this point of
view, the legislations, due to their extremely rigid and formalistic nature, no longer
met the requirements of the new society's structure. Also, the solemnities that had to
be performed were very special burdensome, considering, first of all, the penalty for
not complying with them, i.e. the loss of the process, without the possibility of
restarting it.
On the other hand, in the framework of the legislation, the magistrates had an
exclusive passive role, limiting themselves to ascertaining the fulfillment by the
parties of the prescribed solemnities. Also as a reason for the decline of the legislation
can be mentioned the increasing difficulties that debtors encounter in finding
guarantees. All these reasons, and still others, determined the appearance, in parallel
with the legislation system, of a new court procedure, respectively the formula
procedure (litigation per formula), the legislation system being maintained only in
two cases: in case of eventual damage (damnum infectum), and when the process was
within the jurisdiction of the centumvirial tribunal (respectively, in the case of
inheritance processes and in the case of objections to the admission of the complaint).
Gaius claimed that the formulary procedure was introduced because legislation had
become odious to the Romans. The reality is that legislation has become a brake on
the development of production and the circulation of goods, and an obstacle to
achieving the interests of the ruling class. In particular, the situation of the knights
who, enriched by commercial and usurious operations, were interested in changing
the forms of legalization of rights, so that the pace of business could be accelerated.
So, the so-called "aversion" of the Romans towards the legislation is, in fact, the
expression of the economic interests of the knights who occupied, at the end of the
republic, a central place in the dominant class. The formal procedure was introduced
by the Aebutia law, issued between 149 and 126 BC. By introducing the formulary
procedure, the Aebutian law did not suppress legislation, but gave the parties the
possibility to opt for one of two procedures. For more than a century both procedural
systems were applied, but in practice the procedure was preferred form. The new
procedure proved to be clearly superior, and the emperor Augustus gave the judicial
Iuliae laws by which, with some exceptions, the legislations were repealed. In the
form procedure, for the valorization of each subjective right there is a distinct action
and each action had its own formula.
The formula represented an instruction drawn up by the magistrate (praetor) in written
form, by which the magistrate (praetor) indicated to the judge, in imperative terms,
what he had to do in the case in question. For each type of subjective law there was
model formula that had to be completed by the praetor with all the elements specific
to the case, on the occasion of the organization of the court. Structure of the
formula. The formula included two categories of parts, encountered in every formula,
but because they were conditions sine qua non a namely: main parts, so named not
because they had to be the very existence of the formula, and accessory parts
(adictiones), their accessory character being determined by the fact that their existence
within the formula was not mandatory, but they were introduced at the request of
those who were being judged. The main parts of the formula are: intentio (intention),
demonstratio (demonstration), condemnatio (condemnation) and adiudicatio
(adjudication). Intentio included the assertion of the plaintiff's claims. Thus, in the
formula of the empti action, which sanctioned the sale, the praetor shows in intentio
that the plaintiff claims to hand over the thing. When the object of the plaintiff's
claims was precisely determined, the intentio was called certain, and when the
plaintiff's right was to be assessed by the judge, the intentio was uncertain. The
demonstratio included the legal cause (source) of the claimant's claims (a contract,
will, etc.). "Adiudicatio" appeared only in the formula of shared actions. By
adjudicatio, the judge was empowered to assign to those in the process the right of
ownership over the part of the work that belonged to them as a result of the exit from
the indivision. By condemnatio, the judge was vested by the praetor with the right to
pronounce a sentence of conviction or acquittal. "Prescriptiones", the prescriptions,
are those secondary parts of the formula placed before the intentio, which aimed to
satisfy an interest of either the plaintiff or the defendant. Prescriptions in favor of the
plaintiff are called pro actors. Prescriptions in favor of the defendant are ‘’called pro
reus. Exceptiones’’ the exceptions, are those secondary parts of the formula that
constitute the defendant's means of defense, through which he can paralyze the
plaintiff's claims. For example. , the debtor does not deny the fact that he received a
sum of money, but later claims that he was forgiven of the debt by the plaintiff. There
are two types of exceptions: peremptory or perpetual and dilatory or temporary.
Perpetual ones definitively reject the plaintiff's claims and can be invoked at any time,
and dilatory ones postpone the plaintiff's right to promote an action and can only be
invoked for a certain time. Process development. Phase in iure. In the formulary
procedure system, the process continues to take place in two phases, but some
innovations have been introduced with regard to the summons, as well as with regard
to the activity of the parties. By virtue of the consensual nature of the process, it was
necessary for both parties to be present before the magistrate. The debates took place
in ordinary words, without the use of solemn formulas and ritual gestures, as
happened in the legislation procedure. Regarding the plaintiff's claims, as in the
legislation procedure, the defendant could adopt three attitudes: to admit, deny or not
defend properly. In addition, it was accepted that in lawsuits whose object was a
determined amount of money, the dispute should be resolved by taking an oath: either
the plaintiff swore that he had a right to claim, or the defendant swore that he owed
nothing (iusiurandum necessarium) . After the debates ended, depending on the nature
of the litigious case and the statements of the parties, the praetor granted the claimant
the action or refused it. If the claimant's claims were found to be well-founded, the
praetor issued him a civil action, when there was an appropriate action. When the
edict did not include a suitable action, the praetor created a new one
action (in factum), drafted according to the elements of the litigation, giving the
formula was drafted, the last act took place before the magistrate, called litis
contestatio. which the Litis contestatio in the formal procedure, generated three
effects that proved of particular importance through the legal consequences, removing
for the future the possibility of resuming the case between the same parties; they were
leading These were: the extinguishing effect - consumes the filed action. the creative
effect - created in favor of the parties a new right that was in regardless of the nature
or the object of the original right, the claimant is entitled to a sum of money, because
in the formal procedure, he collected a sum of money and, in addition, created a
judgment for the right deduced from the judgment; the fixing effect - because it fixes,
determines the legal quality of the litigating parties, specifies the person of the judge
and delimits the object of the process. The fixative effect fixes the real elements, on
the one hand, and the personal elements, on the other. The real elements were
constituted by the statements of the parties, and the personal elements by the identity
of the parties and the court, respectively the judge. These three legal effects had an
important role, not only for the Romans civil procedure, but also for the Romans civil
law. Due to the effects, the legal mechanisms and their valuable institutions are
created, according to the Formula the "in iudicio" phase. After the magistrate
handed over copies to the plaintiff and he, in turn, to the defendant, as a last act of the
first stage, the process moved to the second stage, before the judge. The activity of the
parties before the judge was carried out, broadly speaking, according to the rules
known from the legislative procedure. The evidence administered was valued
according to the social position of the parties. In this sense, Aulus Gelliu tells us that,
being elected judge, he requested a consultation from a jurisconsult, and he advised
him to give justice to the plaintiff, because he has a better social situation than that of
the defendant. The post merediem praesenti litem addicito rule was maintained, but
received some relaxations, admitting certain reasons for delaying the process. The
judge was the "slave" of the formula, that is, he had to respect it in
precisely, referring permanently to the time of its preparation, respectively "litis
contestatio". That is why he was not allowed to take into account the facts that
intervened after the litis contestatio. Even if, for example, the defendant satisfied the
plaintiff's claims after litis contestatio, he had to to be convicted, but if it was a bona
fide or arbitrary action, the satisfaction of the plaintiff's claims during the trial
attracted the defendant's acquittal. The effects of the sentence. Following the
pronouncement of the sentence, the judge becomes what he was before, a private
person; the sentence adopted by him having different effects, as it was a sentence of
conviction or a sentence of acquittal. The sentence of conviction had a double effect:
it had a legal force and an executive force, the acquittal only had a single effect,
namely the legal force. The legal force of the sentence, regardless of whether it was a
conviction or an acquittal, assumes that the same parties, having a dispute regarding
the same object, can no longer be judged. In the legislation procedure, the authority of
the res judicata results from the legal force of the sentence, which was carried out
according to the principle "bis de eadem re ne sit action" - a legislation cannot be used
twice for the valorization of the same right. In this context, the authority of res
judicata was achieved only for the plaintiff, and the defendant who had not used any
action could not reopen the case. In the formal procedure, the authority of res judicata
was realized as a consequence of the extinguishing effect produced by litis
contestatio. The plaintiff could not reopen the case because at the time of litis
contestatio his right was extinguished. However, the defendant could bring an action
in the same case. But, in order to make the legal force of the sentence opposable to the
defendant as well, the jurisprudence created the principle res iudicata pro veritae
accipitur - the judgment is considered true; the principle is sanctioned with exceptio
rei iudicate. As I mentioned above, the sentence of conviction has legal force as well
as enforceable force. The enforceable force of the sentence in the formulation
procedure was carried out differently compared to the legislation procedure, in which
there were actions of the enforcement law. Here the force
execution was carried out as follows: after the sentence of conviction, the defendant
had to serve the sentence within 30 days from the sentence, a term stipulated by the
Law of the XII Tables. Otherwise, the plaintiff had a new action against the
defendant, namely actio iudicati, which replaced the manus injectio from the old
procedure. If the defendant recognized the obligation from the sentence of this new
trial regarding execution, it was done before the magistrate - in iure; but if he did not
confess, the trial continued normally according to the known procedure, but he had to
pay double the amount for which he had been convicted the first time. Actio iudicati
aims for the execution of the sentence to be done either on the person, a system taken
from the legislative procedure, or on the property, a system introduced by the praetor
in the formal procedure. As for the forcible execution on the person, the plaintiff took
the defendant to lock him up in his private prison with all the consequences flowing
therefrom. However, if the plaintiff moved to enforced execution, which was a more
advanced system, then he could appeal to the procedure created by the praetor, called
"venditio bonorum" - the sale at public auction of the debtor's entire patrimony. This
procedure was carried out in two stages: missio in possessionem - sending the creditor
into possession of the debtor's goods, and vendito bonorum - carried out by a magister
bonorum - owner of the goods, appointed by the magistrate, who proceeds to sell the
goods in bulk to the one who offered a higher price, called emptor bonorum - the
buyer of the goods. Another more advanced procedure for the forced execution of the
debtor's assets was distractio bonorum - a procedure by which the assets of the
insolvent debtor were no longer sold in bulk, but retail, and also no longer created the
effect of infamy on the debtor. Appeals against sentence. Those interested had the
following means of appeal: intercession - constituted the right that some magistrates
had to oppose the acts of other magistrates. This right could not be exercised against a
sentence given by the judex - judge, who was a person and not a magistrate vested
with public authority; revocatio in duplum - constituted a way of appeal of the non-
appeals against the conviction by which he requests a new resolution of the litigation;
restitutio in integrum - was a request to be restored to the previous situation of the
process, for the purpose of a retrial of the case for various reasons such as: false
testimony, error, deception, violence; appelatio - the appeal constituted a way of
appeal against a court sentence, it referred only to acts of the magistrates, appeared
later, during the empire; judex qui litem suam facit - the judge who, through
negligence, gave an unjust decision, could be sued by means of an action, action in
factum, for an amount of money equivalent to the damage caused by him.
Representation in justice is the legal system by virtue of which an appointed
representative participates in the process on behalf of another person, called a
representative. For a long period of time, namely ancient, the Romans did not admit
legal representation based on the age nemo alieno lege agere potest (no one can file a
legal action on behalf of another). Over time, the rate of exchange of goods increased
so that one person's interests had to be defended at the same time, in different places.
Practice demanded the admission of representation, first by indirect means, then even
openly, which was gradually made from imperfect to perfect representation.
According to the reform of the praetor, the represented could defend his interests in
court through the representative, but the effects of the sentence were produced on the
represented. Imperfect representation was achieved by transposition. In the intentio
the name of the representative was entered, and in the condemnatio - the name of the
representative who ultimately bears the effects of the sentence. The representative
transferred to the represented the rights and obligations arising from the sentence
pronounced by the judge. The oldest representative in justice was the cognitor, who
had to be constituted with the pronouncement of some solemn words and in the
presence of the opponent. Later, the prosecutor also appeared, constituted without the
use of solemn terms and even in the absence of the opponent.
The jurisprudence perfected the system of imperfect representation, introduced by the
praetor, so that in the case of the cognitor, the action by which the execution of the
sentence of conviction was obtained was given directly represented, thus the effects of
the sentence were not produced on the cognitor who participates in the process, but on
the represented one. There is also a differentiation between legal representatives and
those who plead for others - "postulare pro alio".
Extraordinary procedure (extra ordinem). After the establishment of the empire,
alongside the formal procedure, due to its sporadic character at the beginning, a new
court procedure appeared which, due to its exception to the common law procedure,
was called extraordinary, i.e. in outside the usual order (extra ordinem) in which trials
were judged, the investigation of the case by a magistrate, or, later, by an imperial
official, looked at a series of different situations from which it developed during the
Empire, especially post-classical law, pro - extraordinary civil cedura - extraordinem
iudiciorum privatorum, replaced by the normal civil procedure - ordo iudiciorum
privatorum. Due to the economic, social and political changes of the 3rd century, but
especially due to the fact that the Roman Empire became openly an absolute
monarchy, the emperor no longer had any interest in maintaining the old institutions
from the time of the principality. Under these conditions, the judge could no longer be
a simple individual. He was supposed to be an official under the control of the
emperor. These were the causes that determined the disappearance of the formal
procedure and constitute the origin of the extraordinary procedure. Even from the era
of classical law, some lawsuits were judged not only according to the formal
procedure, but also according to the rules of administrative justice, that is, of the
relations between individuals and the state. In the extraordinary procedure, the two
stages of the process, in iure and in iudicio, disappear, the entire process being
debated before a single imperial official - subordinate to the emperor - who was
entitled to investigate the case both in fact and in law. As such, the formula also
disappears, because the magistrate could not send the formula to himself. Here the
process is conducted before a single court, from the beginning until the decision is
rendered, the court being represented by one and the same person, the magistrate or
high official, i.e. the magistrate judge. The formula disappears, because it could not
send the formula to itself. after the Name of the old, direct and useful, civil, praetorian
actions existing in Justinian's texts are only apparent, because, in reality, and as he
himself shows, there is no difference between them. In Justinian's law, the action is no
longer characterized by the formula, because it disappeared, but by the nature of the
legal relationship. Once the formula disappears, the accessory part of the formula
disappears - exceptio, and any exception is minor. At the judicial organization within
the extraordinary procedure, the magistrates are replaced by the imperial officials,
who were no longer elected, but appointed by the emperor, between them there was a
strict hierarchy, which took on the shape of a pyramid. At the top of the pyramid was
the emperor, who was competent to judge all cases that fell within his sphere of
activity. On the next step were the supreme heads of the four regions in which the
Roman Empire had been divided during the time of Justinian, namely the East, Gaul,
Italy. Their subordinates were vicars, who were the leaders of dioceses -
administrative units into which the regions had been divided. The dioceses were
divided into provinces led by governors or heads of provinces. Apart from these
judicial bodies - which had general jurisdiction, special courts also functioned, such
as military, fiscal, ecclesiastical courts. Forms of court proceedings. The
extraordinary procedure has specific forms, as follows: procedure by denuntiatio,
procedure by rescript, procedure by litis denuntiatio and procedure by libel. The
procedure by denuntatio (notification) - based on this procedure, which was
authorized by the plaintiff, he sends the defendant a notification to the magistrate - by
which he made known his claims and invited him to appear before the magistrate on a
certain date.24 The procedure by rescript was carried out by the emperor, who could
judge any trial, if he made a request addressed to him, called the part supplicatio. The
emperor would either judge the trial and issue a decree, or send the case. The litis
denuntiatio procedure consisted of sending notification to the lower court through a
rescript. official of the incest, not by the plaintiff to the defendant, but by a vacationer.
Libel procedure - chronologically speaking, it is the most recent form of the known
extraordinary procedure. According to this procedure, the plaintiffs notify the judicial
authority through a request called libellus conventiones. This application contains the
plaintiff's claims, the purpose of drafting the application being to obtain the approval
of the defendant's subpoena from the judge. The judge, in turn, could, in which the
judge found the plaintiff's request well-founded, communicate it, grant this subpoena
permission or refuse to grant it. If the defendant who was obliged to respond with a
response and to give guarantees that he will appear at the set court date. If the
defendant refused to give guarantees, he could be brought before the court. The
judgment, its execution and the appeal. In the system of extraordinary procedure,
condemnation in kind (ad ipsam rem) became general. The sentence of conviction
was no longer on a sum of money, but on the object of the plaintiff's request. The
generalization of the conviction ad ipsam rem constitutes an important step in the
direction of perfecting the mechanism of the sanction of subjective rights. The
disappearance of the formula also affected the character of the exceptions. If in the
formula procedure the judge could not pronounce a sentence of conviction for less
than what was indicated by the praetor in the formula in the extraordinary procedure,
freed from the rigors of the formula, he has the possibility to sentence the defendant
to a sum of money less than the one claimed by the plaintiff. If the plaintiff claimed
100, and the defendant proved, by way of exception, that he owed only 50, the judge
pronounced a sentence of conviction for 50. For the execution of the sentence, an
appeal was made to the state organs - manu militarii, which contributed to perfecting
the system valorization of subjective rights through justice. Unlike the legislative and
formal procedures, in the extraordinary procedure both the recognition of rights, as
well as the execution of the sentence, were carried out with the direct and exclusive
participation of state bodies.
Conclusion : The Roman civil procedure represents the totality of the rules that
regulate the way the court process is conducted, regarding the freedom , capitalization
of debt rights (creditor and debtor), inheritance, due to the fact that after the
establishment of the empire, profound socio-political changes took place in Romanian
society, which could not remain without influence on the organization of the courts
and the judicial procedure.
 BIBLIOGRAPHY
1.) Private Roman Law book (edition II)
2.) Private Roman Law in schemes : Subject nr.3

3.) SITE :
https://dreptmd.wordpress.com/cursuri-universitare/drept-roman/procedura-de-
judecata-procedura-civila-romana/

4.) Site : https://ro.scribd.com/doc/70569273/procedura-formulara

5.) Site : https://www.scrigroup.com/legislatie/drept/Procedura-extraordinara-

drept-31285.php