PROCEDURAL SYSTEMS

legis and formulas had two periods

- iniure. before a magistrate/official
- legis: this magistrate was a praetor and had iurisdictio [saying the applicable
law]. saying if the case was apt for a trial, and conferred the iudicatio to the
judge
- apud iudicem. before a private judge

Legis actiones [legal actions]

from archaic period until octavian augustus

decline of the procedural system until abolition.

● private trials. the sentence was passed by a private judge, a citizen (not a
professional representing the state)
● definition: procedural system based on actions. parties, the plaintiff (and the
defendant sometimes) were giving solemn statements [related to formalism, as
these should comply with the legal requirements for legal validity] and ritual
gestures [related with regula or regla, specific gestures regulated by rules], in order
to defend in a legal way their acts.
● origin: can be dated in the archaic period during the monarchy, the oldest legal and
political period. can be classified as mores maiorum, and surely in the XII tables,
although it existed before.
● decline: the decline of this procedural system was due to the appearance of the
praetor peregrinus (242 BC), but it was progressive. in the octavian augustus period,
there was the official abolishment through two specific laws:
○ leges iuliae. Initiated the division between private and public trials.
● applications:
○ considering them lawful trials, because everything related to those trials was
regulated by the law of ius civile. That's why all the characteristics of ius civile
could apply to legis actiones (exclusivism, inflexibility, patricarchality….). the
most important thing was formality, as if the trial didn’t follow the rules, the
party lost as it was rejected.
○ considering them as belonging to the order of private trials.
■ because:
● it was judged by one single private judge, not representing the
state
● he was passing a sentence because he had iudicatio [a
power that was given by the magistrate for this specific reason,
only because he was judged in this specific case, for saying
who was right], saying or giving his sententia [opinion]. the
sentences that were passed by those judges could not be
appealed against because there was no public hierarchy to do
so.
■ only the specific actions that were regulated could be exercised, and
there were only 5.
 ● group 1. contentious [they implied and entailing procedural
fight/dispute]
○ sacramental bet.
○ petition or request of a judge or referee.
○ for summons. [emplazar] force to do a specific
activity, normally when they were agreeing to physical
promises (like working, etc)
● group 2. executive [they were used to exercise and execute
sentences that have already be passed]
○ laying on the hands. taking physically the person, the
defendant. if the defendant didn’t fulfill the sentence,
the other party could get the defendant as a prisoner.
○ taking a pledge. giving a thing as a guarantee to fulfill
or comply with another obligation or duty.
■ Those trials always took place in the city of Rome or one mile away. If
the trial was further, it would be the competence of praetor peregrinus
or others. They were judged and the sentence was passed by one
only private judge.
● iniure. had 4 phases
○ in ius vocatio [summons]. an obligation by the plaintiff to summon the
defendant. Both had to summon in the presence of the magistrate. the party
that was not interested in being summoned, unless he had a personal
guarantee, called vindex [another person from a very similar or the same
social and economic category], because in case that he lost, it was a way for
the plaintiff to be complied.
○ appearance of both parties in front of the magistrate, the plaintiff and the
defendant (or vindex in the name of a defendant). The plaintiff explained his
legal aspiration, and after that the magistrate accepted or denied the action.
the defendant could explain himself if it was accepted, he had three options
■ if this was about a personal rights, he had the possibility of
acknowledging what had been expected by the plaintiff
■ related to rights in rem:
● giving up the thing that was the object of trial. directly given by
the defendant.
● legally abandon the thing and let the praetor give it to the
plaintiff.
○ litis [controversy] contestatio [with witnesses]. If the defendant did not agree
at all, both parties and witnesses listen and see the solemn statements and
the ritual gestures of both in the presence of the magistrate. After this, they
are getting a kind of arbitration agreement in which both parties decide to give
a judge the possibility to decide that trial. They submit that decision to the
judge’s sententia. the effects of the litis contestatio:
● The limits of the trial are set, so the judge can know from that
moment on the extent of the sentence (how far he can go)
extra petitia.
● consumption of this specific action. for this specific case
between these specific parties, this action cannot be exercised
anymore.
 ○ preparation for apud iudicem. they agree in having this reality.
■ appointment of the judge. how was the judge pointed:
● both parties could agree about the person
● by a draw
● apud iudicem. Now everything is done in the presence of the judge.
○ debate/deliberation
■ parties can argue and state whatever they consider important related
to the facts, not related to the law. There was a council of jurists that
could advise the judge which was in charge of the law. whoever did
anything outside of the judge, they lost.
■ they have to repeat the solemn statements and the ritual gestures
■ the way of proving these factual arguments is a duty of the parties, so
the judge was not obliged to prove anything. this could be done by
witnesses or individual legal wills and swearing words [juramentos]
■ according to existing literature, depending on the case the importance
of the evidence was difference, but the details about this are unknown
nowadays
○ sentence
■ the last part was the passing of the sentences (guilty or not guilty), but
what’s important that the judge was not forced to judge/pass
sentences, because the content of the sentence was sworn by him,
and in this case he had to judge and a new judge was appointed, and
the trial continues from the apud iudicem.