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p9 Actio

Article by George Long, M.A., Fellow of Trinity College
on pp9‑13 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

ACTIO is defined by Celsus (Dig. 44 tit. 7 s51) to be the right of pursuing by judicial means (judicio) what is a man's due.

With respect to its subject-matter, the actio was divided into its two great divisions, the in personam actio, and the in rem actio. The in personam actio was against a person who was bound to the plaintiff by contract or delict, that is, when the claim against such person was 'dare, facere, praestare oportere;' the in rem actio applied to those cases where a man claimed a corporal thing (corporalis res) as his property, or claimed a right, as for instance the use and enjoyment of a thing, or the right to a road over a piece of ground (actus). The in rem actio was called vindicatio; the in personam actio was called in the later law condictio, because originally the plaintiff gave the defendant notice to appear on a given day for the purpose of choosing a judex (Gaius, IV.5).

The old actions of the Roman law were called legis actiones, or legitimae, either because they were expressly provided for by laws (leges), or because they were strictly adapted to the words of the laws, and therefore could not be varied. In like manner, the old writs in England contained the matter or claim of the plaintiff expressed according to the legal rule.1

The five modes of proceeding by legal action as named and described by Gaius (IV.12), were, Sacramento, Per judicis postulationem, Per condictionem, Per manus injectionem, Per pignoris capionem.

But these forms of action gradually fell into disuse, in consequence of the excessive nicety required, and the failure consequent on the slightest error in the pleadings; of which there is a notable example given by Gaius himself (IV.11), in the case of a plaintiff who complained of his vines (vites) being cut down, and was told that his action was bad, inasmuch as he ought to have used the term trees (arbores) and not vines; because the law of the Twelve Tables, which gave him the action for damage to his vines, contained only the general expression "trees" (arbores). The Lex Aebutia and two Leges Juliae abolished the old legitimae actiones, except in the case of damnum infectum [Damnum infectum], and in matters which fell under the cognizance of the Centumviri. [Centumviri.]

In the old Roman constitution, the knowledge of the law was closely connected with the institutes and ceremonial of religion, and was accordingly in the hands of the patricians alone, whose aid their clients were obliged to ask in all their legal disputes. Appius Claudius Caecus, perhaps one of the earliest writers on law, drew up the various forms of actions, probably for his own use and that of his friends: the manuscript was stolen or copied by his scribe Cn. Flavius, who made it public; and thus, according to the story, the plebeians became acquainted with those legal forms which hitherto had been the exclusive property of the patricians (Cic. De Orat. I.41, pro Murena, c11; Dig. 1 tit. 2 s2 §7).

Upon the old legal actions being abolished, it became the practice to prosecute suits according to certain prescribed forms or formulae, as they were called, which will be explained after we have noticed various divisions of actions, as they are made by the Roman writers.

The division of actiones in the Roman law is somewhat complicated, and some of the divisions must be considered rather as emanating from the schools of the rhetoricians than from any other source. But this division, though complicated, may be somewhat simplified, or at least rendered more intelligible, if we consider that an action is a claim or demand made by one person against another, and that in order to be a valid legal claim it must be founded on a legal right. The main division of actions must therefore have a reference or analogy to the main division of rights; for in every system of law the form of the action must be the expression of the legal right. Now the general division of rights in the Roman law is into rights of dominion or ownership, which are rights against the whole world, and into rights arising from contract, and quasi contract, and delict. The actio in rem implies a complainant, who claims a certain right against every person who may dispute it, and the object and end of the action are to compel an acknowledgment of the right by the particular person who disputes it. By this action the plaintiff maintains his property in or to a thing, or his rights to a benefit from a thing (servitutes). Thus the actio in rem is not so called on account of the subject-matter of the action, but the term is a technical phrase to express an action which is in no way founded on contract, and therefore has no determinate individual as the other necessary party to the action; but every individual who disputes the right becomes, by such act of disputing, a party liable to such action. The actio in rem does not ascertain the complainant's right, and from the nature of the action the complainant's right cannot be ascertained by it, for it is a right against all the world; but the action determines that the defendant has or has not a claim which is valid against the plaintiff's claim. The actio in personam implies a determinate person or persons against whom the action lies, the right of the plaintiff being founded on the acts of the defendant or defendants: it is, therefore, in respect of something which has been agreed to be done, or in respect of some injury for which the plaintiff claims compensation. The actio mixta of Justinian's legislation (Inst. IV. tit. 6 s20) was so called from its being supposed to partake of the nature of the actio in rem and the actio in personam. Such was the action among co-heirs as to the division of the inheritance, and the action for the purpose of settling boundaries which were confused.

Rights, and the modes of enforcing them, may also be viewed with reference to the sources for which they flow. Thus, the rights of Roman citizens flowed in part from the sovereign power, in part from those to whom power was delegated. p10That body of law which was founded on, and flowed from the edicts of the praetors, and curule aediles, was called jus honorarium, as opposed to the jus civile, in its narrower sense, which comprehended the leges, plebiscita, senatus consulta, &c. The jus honorarium introduced new rights and modified existing rights; it also provided remedies suitable to such new rights and modifications of old rights, and this was effected by the actions which the praetors and aediles allowed. On this jurisdiction of the praetors and aediles is founded the distinction of actions into civiles and honorariae, or, as they are sometimes called, praetoriae, from the greater importance of the praetor's jurisdiction.

There were several other divisions of actions, all of which had reference to the forms of procedure.

A division of actions was sometimes made with reference to the object which the plaintiff had in view. If the object was to obtain a thing, the action was called persecutoria. If the object was to obtain damages (poena) for an injury, as in the case of a thing stolen, the action was poenalis; for the thing itself could be claimed both by the vindicatio and the condictio. If the object was to obtain both the thing and the damages, it was probably sometimes called actio mixta, a term which had however another signification also, as already observed. The division of actiones into directae and utiles must be traced historically to the actiones fictitiae or fictions by which the rights of action were enlarged and extended. The origin of this division was in the power assumed by the praetor to grant an action in special cases where no action could legally be brought, and in which an action, if brought, would have been inanis or inutilis. After the decline of the praetor's power, the actiones utiles were still extended by the contrivances of the juris prudentes and the rescripts of the emperors. Whenever an actio utilis was granted, it was framed on some analogy to a legally recognized right of action. Thus, in the examples given by Gaius (IV.34), he who obtained the bonorum possessio by the praetor's edict, succeeded to the deceased by the praetorian and not the civil law: he had, therefore, no direct action (directa actio) in respect of the rights of the deceased, and could only bring his action on the fiction of being what he was not, namely, heres.

Actions were also divided into ordinariae and extraordinariae. The ordinariae were those which were presented in the usual way, first before the praetor, in jure, and then before the judex, in judicio. When the whole matter was settled before or by the praetor in a summary way, the name extraordinaria was applicable to such action. [Interdict.]

The term condiciones only applies to personal actions; but not to all personal actions. It does not comprehend actions ex delicto, nor bonae fidei actiones. As opposed to bonae fidei actiones, condictiones were sometimes called actiones stricti juris. In the actiones stricti juris it appears that the formula of the praetor expressed in precise and strict terms the matter submitted to the judex, whose authority was thus confined within limits. In the actiones bonae fidei, or ex fide bona (Cic. Top. 17), more latitude was given, either by the formula of the praetor, or was implied in the kind of action, such as the action ex empto, vendito, locato, &c., and the special circumstances of the case were to be taken into consideration by the judex. The actiones arbitrariae were so called from the judex in such case being called an arbiter, probably, as Festus says, because the whole matter in dispute was submitted to his judgment; and he could decide according to the justice and equity of the case, without being fettered by the praetor's formula. It should be observed also, that the judex properly could only condemn in a sum of money; but the arbiter might declare that any particular act should be done by either of the parties, which was called his arbitrium, and was followed by the condemnatio if it was not obeyed.

The division of actions into perpetuae and temporales had reference to the time within which an action might be brought, after the right of action had accrued. Originally those actions which were given by a lex, senatus consultum, or an imperial constitution, might be brought without any limitation as to time; but those which were granted by the praetor's authority were generally limited to the year of his office. A time of limitation was, however, fixed for all actions by the late imperial constitutions.

The division of actions into actiones in jus and in factum is properly no division of actions, but has merely reference to the nature of the formula. In the formula in factum concepta, the praetor might direct the judex barely to inquire as to the fact which was the only matter in issue; and on finding the fact, to make the proper condemnatio: as in the case of a freedman bringing an action against his patronus (Gaius, IV.46). In the formula in jus the fact was not in issue, but the legal consequences of the fact were submitted to the discretion of the judex. The formula in factum commenced with the technical expression, Si paret, &c., "If it should appear," &c.; the formula in jus commenced, Quod A. A., &c., "Whereas A. A. did so and so" (Gaius, IV.47).

The actions which had for their object the punishment of crimes, were considered public; as opposed to those actions by which some particular person claimed a right or compensation, and which were therefore called privatae. The former were properly called judicia publica; and the latter, as contrasted with them, were called judicia privata [Judicium.]

The actions called noxales arose when a filius familias (a son in the power of his father), or a slave, committed a theft, or did any injury to another. In either case the father or owner might give up the wrong-doer to the person injured, or else he must pay competent damages. These actions, it appears, take their name either from the injury committed, or because the wrong-doer was liable to be given up to punishment (noxae) to the person injured. Some of these actions were of legal origin, as that of theft, which was given by the Twelve Tables; that of damnum injuriae, which was given by the Aquilia Lex; and that of injuriarum et vi bonorum raptorum, which was given by the edict, and therefore was of praetorian origin. This instance will serve to show that the Roman division and classification of actions varied according as the Roman writers contemplated the sources of rights of action, or the remedies and the modes of obtaining them.

An action was commenced by the plaintiff summoning the defendant to appear before the praetor or other magistrate who had jurisdictio: this process was called in jus vocatio; and, according to p11the laws of the Twelve Tables, was in effect a dragging of the defendant before the praetor if he refused to go quietly. This rude proceeding was modified in later times, and in many cases there could be no in jus vocatio at all, and in other cases it was necessary to obtain the praetor's permission under pain of a penalty. It was also established that a man could not be dragged from his own house; but if a man kept his house to avoid, as we should say, being served with a writ, he ran the risk of a kind of sequestration (actor in bona mittebatur). The object of these rules was to make the defendant appear before the competent jurisdiction; the device of entering an appearance for the defendant does not seem to have suggested itself to the Roman lawyers (Dig. 2 tit. 4). If the defendant would not go quietly, the plaintiff called on any bystander to witness (antestari) that he had been duly summoned, touched the ear of the witness, and dragged the defendant into court (Hor. Serm. I.9.75‑78; Plautus, Curcul. V.2). The parties might settle their dispute on their way to the court, or the defendant might be bailed by a vindex (Cic. Top. 2; Gaius, IV.46; Gellius, XVI.10). The vindex must not be confused with the vades. This settlement of disputes on the way was called transactio in via, and serves to explain a passage in St. Matthew (V.25).2

When before the praetor, the parties were said jure agere. The plaintiff then prayed for an action, and if the praetor allowed it (dabat actionem), he then declared what action he intended to bring against the defendant, which was called edere actionem. This might be done in writing, or orally, or by the plaintiff taking the defendant to the album, and showing him which action he intended to rely on (Dig. 2 tit. 13). As the formulae comprehended, or were supposed to comprehend, every possible form of action that could be required by a plaintiff, it was presumed that he could find among all the formulae some one which was adapted to his case, and he was accordingly supposed to be without excuse if he did not take pains to select the proper formula (Cic. Pro Ros. Com. c8). If he took the wrong one, or if he claimed more than his due, he lost his cause (causa cadebat, Cic. De Orat. I.36); but the praetor sometimes gave him leave to amend his claim or intentio (Gaius, IV.53, &c.). If, for example, the contract between the parties was for something in genere, and the plaintiff claimed something in specie, he lost his action: thus the contract might be, that the defendant undertook to sell the plaintiff a quantity of dye-stuff or a slave; if the plaintiff claimed Tyrian purple, or a particular slave, this action was bad; therefore, says Gaius, according to the terms of the contract so ought the claim of the intentio to be. As the formulae were so numerous and comprehensive, the plaintiff had only to select the formula which he supposed to be suitable to his case, and it would require no further variation than the insertion of the names of the parties and of the thing claimed, or the subject-matter of the suit, with the amount of damages, &c., as the case might be. When the praetor had granted an action, the plaintiff required the defendant to give security for his appearance before the praetor (in jure) on a day named, commonly the day but one after the in jus vocatio, unless the matter in dispute was settled at once. The defendant, on finding a surety, was said vades dare (Hor. Serm. I.1.11), vadimonium promittere, or facere; the surety, vas, was said spondere; the plaintiff when satisfied with the surety was said, vadari reum, to let him go on his sureties, or to have sureties from him. When the defendant promised to appear in jure on the day named, without giving any surety, this was called vadimonium purum. In some cases recuperatores were named, who, in the case of the defendant making default, condemned him in the sum of money named in the vadimonium.

If the defendant appeared on the day appointed, he was said vadimonium sistere; if he did not appear, he was said vadimonium deseruisse, and the praetor gave to the plaintiff the bonorum possessio ( Hor. Serm. I.9.36‑41; Cic. Pro P. Quintio, c6). Both parties, on the day appointed, were summoned by a crier (praeco), when the plaintiff made his claim or demand, which was very briefly expressed, and may be considered as corresponding to our declaration at law.

The defendant might either deny the plaintiff's claim, or he might reply to it by a plea, exceptio. If he simply denied the plaintiff's claim, the cause was at issue, and a judex might be demanded. The forms of the exceptio also were contained in the praetor's edict, or upon hearing the facts the praetor adapted the plea to the case. The exceptio was the defendant's defence, and was often merely an equitable answer or plea to the plaintiff's legal demand. The plaintiff might claim a thing upon his contract with the defendant, and the defendant might not deny the contract, by might put in a plea of fraud (dolus malus), or that he had been constrained to come to such an agreement. The exceptio was in effect something which negatived the plaintiff's demand, and it was expressed by a negative clause: thus, if the defendant asserted that the plaintiff fraudulently claimed a sum of money which he had not given to the defendant, the exceptio would run thus: Si in ea re nihil dolo malo Auli Agerii factum sit neque fiat. Though the exceptio proceeded from the defendant, it was expressed in this form, in order to be adapted for insertion in the formula, and to render the condemnatio subject to the condition.

Exceptions were peremptoriae or dilatoriae. Peremptory exceptions were a complete and perpetual answer to the plaintiff's demand, such as an exceptio of dolus malus, or of res judicata. Dilatory exceptions were, as the name implies, merely calculated to delay the plaintiff's demand; as, for instance, by allowing that the debt or duty claimed was not yet due. Gaius considers the exceptio litis dividuae and rei residuae (IV.122) as belonging to this class. If a plaintiff prosecuted his action after a dilatory exception, he lost altogether his right of action. There might be dilatory exceptions also to the person of the plaintiff, by which class is the exceptio cognitoria, by which the defendant objects either that the plaintiff is not intitled to sue by a cognitor, or that the cognitor whom he had named was not qualified to act as a cognitor. If the exception was allowed, the plaintiff could either sue himself, or name a proper cognitor, as the case might be. If a defendant neglected to take advantage of a peremptory exceptio, the praetor p12might afterwards give him permission to avail himself of it; whether he could do the same in the case of a dilatory was a doubtful question (Gaius, IV.125).

The plaintiff might reply to the defendant's exceptio, for the defendant by putting in his plea became an actor [Actor.] The defendant's plea might be good, and a complete answer to the plaintiff's demand, and yet the plaintiff might allege something that would be an answer to the plea. Thus, in the example given by Gaius (IV.126), if an argentarius claimed the price of a thing sold by auction, the defendant might put in a plea, which, when inserted in the formula, would be of this shape:— Ut ita demum emptor damnetur, si ei res quam emerit, tradita sit; and this would be in form a good plea. But if the conditions of sale were that the article should not be handed to the purchaser before the money was paid, the argentarius might put in a replicatio in this shape:— Nisi praedictum est ne aliter emptori res traderetur quam si pretium emptor solverit. If the defendant answered the replicatio, his answer was called duplicatio; and the parties might go on to the triplicatio and quadruplicatio, and even further, if the matters in question were such that they could not otherwise be brought to an issue.

The praescriptio, which was so called from being written at the head or beginning of the formula, was adapted for the protection of the plaintiff in certain cases (Gaius, IV.130, &c.; Cic. De Orat. I.37). For instance, if the defendant was bound to make to the plaintiff a certain fixed payment yearly or monthly, the plaintiff had a good cause of action for all the sums of money already due; but in order to avoid making his demand for the future payments not yet due, it was necessary to use a praescription of the following form:— Ea res agatur cujus rei dies fuit.

In many cases both plaintiff and defendant might be required to give security (satisdare); for instance, in the case of an actio in rem, the defendant who was in possession was required to give security, in order that if he lost his cause and did not restore the thing, nor pay its estimated value, the plaintiff might have an action against him or his sureties. When the actio in rem was prosecuted by the formula petitoria, that stipulatio was made which was called judicatum solvi. As to its prosecution by the sponsio, see Sponsioa and Centumviri. If the plaintiff sued in his own name, he gave no security; nor was any security required, if a cognitor sued for him, either from the cognitor or the plaintiff himself, for the cognitor was personally liable. But if a procurator acted for him, he was obliged to give security that the plaintiff would adopt his acts; for the plaintiff was not prevented from bringing another action when a procurator acted for him. Tutors and curators generally gave security like procurators. In the case of an actio in personam, the same rules applied to the plaintiff as in the actio in rem. If the defendant appeared by a cognitor, the defendant had to give security; if by a procurator, the procurator had to give security.

When the cause was brought to an issue, a judex or judices might be demanded of the praetor who named or appointed a judex and delivered to him the formula which contained his instructions. The judices were said dari or addici. So far the proceedings were said to be in jure; the prosecution of the actio before the judex requires a separate discussion. [Judicium.]

The following is an example of a formula taken from Gaius (IV.47):— Judex esto. Si paret Aulum Agerium apud Numerium Negidium mensam argenteam deposuisse eamque dolo malo Numerii Negidii Aulo Agerio redditam non esse quanti ea res erit tantam pecuniam judex Numerium Negidium Aulo Agerio condemnato: si non paret, absolvito.

The nature of the formula, however, will be better understood from the following analysis of it by Gaius:— It consisted of four parts, the demonstratio, intentio, adjudicatio, condemnatio. The demonstratio is that part of the formula which explains what the subject-matter of the action is. For instance, if the subject-matter be a slave sold, the demonstratio would run thus:— Quod Aulus Agerius Numerio Negidio hominem vendidit. The intentio contains the claim or demand of the plaintiff:— Si paret hominem ex jure Quiritium Auli Agerii esse. The adjudicatio is that part of the formula which gives the judex authority to adjudicate the thing which is the subject of dispute to one or other of the litigant parties. If the action be among partners for dividing that which belongs to them all, the adjudication would run thus:— Quantum adjudicari oportet judex Titio adjudicato. The condemnatio is that part of the formula which gives the judex authority to condemn the defendant in a sum of money, or to acquit him: for example, Judex Numerium Negidium Aulo Agerio sestertium milia condemna: si non paret, absolve. Sometimes the intentio alone was requisite, as in the formulae called praejudiciales (which some modern writers make a class of actions), in which the matter for inquiry was, whether a certain person was a freedman, what was the amount of a dos, and other similar questions, when a fact solely was the thing to be ascertained.

Whenever the formula contained the condemnatio, it was framed with the view to pecuniary damages; and accordingly, even when the plaintiff claimed a particular thing, the judex did not adjudge the defendant to give the thing, as was the ancient practice at Rome, but condemned him in a sum of money equivalent to the value of the thing. The formula might either name a fixed sum, or leave the estimation of the value of the thing to the judex, who in all cases, however, was bound to name a definite sum in the condemnation.

The formula then contained the pleadings, or the statements and counter-statements, of the plaintiff and the defendant; for the intentio, as we have seen, was the plaintiff's declaration; and if this was met by a plea, it was necessary that this also should be inserted in the formula. The formula also contained the directions for the judex, and gave him the power to act. The English and Roman procedure are severally stated in Mr. p13Spence's work on the Equitable Jurisdiction of the Court of Chancery, pp206‑235. The Roman forms of procedure underwent various changes in the course of time, which it is not very easy to describe; but it has been remarked by Hollweg (Handbuch des Civilprozesses, p19) that the system of procedure maintained itself in all essential particulars unaltered for many centuries, and what we learn from Cicero (B.C. 70) is almost the same as what we learn from Gaius (A.D. 160). Modern writers, however, differ on various points; and the subject requires a complete examination from one who is fully acquainted with the Roman law, and practically versed in the nature of legal proceedings generally.

The following are the principal actions which we read of in the Roman writers, and which are briefly described under their several heads:— Actio — Aquae pluviae arcendae; Bonorum vi raptorum; Certi et Incerti; Commodati; Communi dividundo; Confessoria; Damni injuria dati; Dejecti vel effusi; Depensi; Depositi; De dolo malo; Emti et venditi; Exercitoria; Ad Exhibendum; Familiae erciscundae; Fiduciaria; Finium regundorum; Furti; Hypothecaria; Injuriarum; Institoria; Judicati; Quod jussu; Legis Aquiliae; Locati et conducti; Mandati; Mutui; Negativa; Negotiorum gestorum; Noxalis; De pauperie; De peculio; Pignoraticia, or Pignoratitia; Publiciana; Quanti minoris; Rationibus distrahendis; De recepto; Redhibitoria; Rei uxoriae, or Dotis; Restitutoria and Rescissoria; Rutiliana; Serviana; Pro socio; Tributoria; Tutelae.

The Author's Notes:

1 "Breve quidem cum sit formatum ad similitudinem regulae juris, quia breviter et paucis verbis intentionem proferentis exponit et explanat, sicut regula juris, rem quae est breviter enarrat." (Bracton, f. 413.)

2 It is not easy to state correctly the changes in procedure which took place after the abolition of the legitimae actiones. Compare Gaius, IV.25, 46.

Thayer's Note:

a Sponsio: there is no such article in the dictionary. The subject is treated in detail, but in the articles Interdictum and Vindicatio.

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