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p642 Interdictum

Article by George Long, M.A., Fellow of Trinity College
on pp642‑644 of

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

INTERDICTUM. "In certain cases (certis ex causis) the praetor or proconsul, in the first instance (principaliter), exercises his authority for the termination of disputes. This he chiefly does when the dispute is about Possession or Quasi-possession; and the exercise of his authority consists in ordering something to be done, or forbidding something to be done. The formulae and the terms, which he uses on such occasions, are called either Interdicta or Decreta. They are called Decreta when he orders something to be done, as when he orders something to be produced (exhiberi) or to be restored: they are called Interdicta when he forbids something to be done, as when he orders that force shall not be used against a person who is in possession rightfully (sine vitio), or that nothing shall be done on a piece of sacred ground. Accordingly all Interdicta are either Restitutoria, or Exhibitoria, or Prohibitoria (Gaius, IV.139, 140).

This passage contains the essential distinction between an Actio and a Interdictum, so far as the praetor or proconsul is concerned. In the case of an Actio, the praetor pronounces no decree, but he gives a Judex, whose business it is to investigate the matter in dispute, and to pronounce a sentence consistently with the formula, which is his authority for acting. In the case of an Actio, therefore, the praetor neither orders nor forbids a thing to be done, but he says Judicium dabo. In the case of an Interdict, the praetor makes an order that something shall be done or shall not be done, and his words are accordingly words of command: Restituas, Exhibeas, Vim fieri veto. This immediate interposition of the praetor is appropriately expressed by the word "principaliter," the full effect of which is more easily seen by its juxtaposition with the other words of the passage, than by any attempt to find an equivalent English expression.

Savigny observes that it may be objected to this exposition, that in one of the most important Interdicts, that De Vi, the formula is, Judicium dabo (Dig.43 tit. 16 s1). But, as he observes, the old genuine formula was, Restituas (Cic. pro Caecin. 8, 30); and the "Judicium dabo" must have been introduced when the formulae of the two old Interdicts (De Vi Armata and De Vi Quotidiana) were blended together, and at a time when the distinctions between the old formulae had become a matter of indifference.

The mode of proceeding as to the Interdict was as follows:— The party aggrieved stated his case to the praetor, which was the foundation of his demand of an Interdict, and was therefore analogous to the Postulatio actionis. If the praetor saw sufficient reason, he might grant the Interdict, which was often nothing more than the words of the Edict addressed to the litigant parties; and in doing so, he used his "auctoritas finiendis controversiis" in the first instance, or immediately and without the intervention of a judex (principaliter), and also "certis ex causis," that is, in cases already provided for by the Edict. If the defendant either admitted the plaintiff's case before the Interdict was granted, and complied with its terms, or submitted to the interdict after it was granted, the dispute was of course at an end. This is not stated by Gaius, but follows of necessity from the nature of the case; and when he goes on to say "that when the praetor has ordered any thing to be done or forbidden anything to be done, the matter is not then ended, but the parties go before a judex or recuperatores," he means that this further proceeding takes place, if the praetor's Interdict does not settle the matter. The whole form of proceeding is not clearly stated by some modern writers, but the following is consistent with Gaius.

The complainant either obtained the Interdict or he did not, which would depend on the cause that he made out before the praetor. If he failed, of course the litigation was at end; and if he obtained the interdict, and the defendant complied with its terms, the matter in this case also was at an end. If the defendant simply did not obey the terms of the Interdict, it would be necessary for the complainant again to apply to the praetor, in order that this fact might be ascertained, and that the plaintiff might give full satisfaction. If the defendant was dissatisfied with the Interdict, he might also apply to the praetor for an investigation into the facts of the case: his allegation might be that there was originally no ground for the Interdict, though the plaintiff was not satisfied, or on the ground that he was unable to do more than he had done. In all these cases, when the praetor's order did not terminate the dispute, he directed an inquiry by certain formulae, which were the instruction of the judex, recuperatores, or arbiter. Accordingly, the process of the Interdict belonged to the ordo judiciorum privatorum, but the judicium was constituted by the peculiar process of the Interdict. The inquiry would be, Whether anything had been done contrary to the Praetor's Edict;1 or, Whether that had been done, which he had ordered to be done: the former inquiry would be made in the case of a Prohibitory Interdict; and the latter in the case of an Exhibitory or Restitutory Interdict.

In the case of Interdicta Prohibitoria there was always a sponsio; that is, the parties were required to deposit or give security for a sum of money, the loss of which was in the nature of a penalty (poena) to the party who failed before the judex: this sponsio was probably required by the praetor. In the case of Interdicta Restitutoria and Prohibitoria, the proceeding was sometimes per sponsionem, and therefore before a judex or recuperatores, and sometimes, without any sponsio, per formulam arbitrariam, that is, before an arbiter. In the case of these two latter Interdicts, it seems to have depended on the party who claimed the inquiry whether there should be a sponsio or not: if such party made a sponsio, that is, proffered to pay a sum of money, if he did not make out his p643case, the opposite party was required to make one also. In the case of Caecina (Cic. pro Caecin. 8) a sponsio had been made: Cicero says, addressing the recuperatores, "sponsio facta est: hac de sponsione vobis judicandum est." In fact, when the matter came before a judex or arbiter, the form of proceeding was similar to the ordinary judicium.

The chief division of Interdicts has been stated. The various purposes to which they were applicable appear from the titles; as, Interdictum de Aqua, de Arboribus caedendis, de Liberis exhibendis, de Rivis, de Superficiebus, &c.

Another division of Interdicts was into those for the purpose of acquiring Possession, retaining possession, or recovering possession (Gaius, IV.144).

The Interdictum adipiscendae possessionis was given to him to whom the Bonorum possessio [Bonorum Possessio] was given, and it is referred to by the initial words Quorum bonorum (Dig.43 tit. 2 s1). Its operation was to compel a person, who had possession of the property of which the Bonorum possessio was granted to another, to give it up to such person, whether the person in possession of such property possessed it pro herede or pro possessore. The Bonorum Emtor [Bonorum Emtio] was also entitled to this Interdict, which was sometimes called Possessorium. It was also granted to him who bought goods at public auction, and in such case was called Sectorium, the name "Sectores" being applied to persons who bought property in such manner (Cic. pro Rosc. Am. 36).

The Interdictum Salvianum was granted to the owner of land, and enabled him to take possession of the goods of the colonus, who had agreed that his goods should be a security for his rent (Dig.43 3).

This Interdict was not strictly a Possessorial Interdict, as Savigny has shown (Das Recht des Besitzes, p410; Puchta, Institutionen, &c. II. § 225). It did not, like the two other Interdicts, presuppose a lawful possession, that is, a Jus possessionis acquired by the fact of a rightful possession; the complainant neither alleged an actual possession nor a former possession.

The Interdictum retinendae possessionis could only be granted to a person who had a rightful possessio, and he was intitled to it in respect of damages sustained by being disturbed in his possession, in respect of anticipated disturbance in his possession, and in the case of a dispute as to ownership in which the matter of possession was first to be inquired into. Its effect in the last case would be, as Gaius states, to determine which of two litigant parties should possess, and be the defendant, and which should be the claimant, and have the burden of proof. There were two Interdicts of this class named respectively Uti Possidetis and Utrubi, from the initial words of the Edict. The Interdictum Uti Possidetis applied to land or houses, and the other to moveables. The Uti Possidetis protected the person who at the time of obtaining the Interdict was in actual possession, provided he had not obtained the possession against the other party (adversarius) vi, clam, or precario, which were the three vitia possessionis (Festus, s.v. Possessio; Gaius, IV.160). In the case of the Interdictum Utrubi, the possession of the movable thing was by the Interdict declared to belong to him who had possessed the thing against the other party during the greater part of that year, "nec vi nec clam nec precario." There were some peculiarities as to possessio of moveable things (Gaius, IV.151).

The Interdictum recuperandae possessionis might be claimed by him who had been forcibly ejected (vi dejectus) from his possession of an immovable thing, and its effect was to compel the wrongdoer to restore the possession, and to make good all damage. The initial words of the Interdict were, Unde tu illum vi dejecisti; and the words of command were, Eo restituas (Cic. pro Caecin. 30, pro Tull. 4, 29, 44; Gaius, IV.154; Dig.43 tit. 16 s1). There were two cases of Vis: one of Vis simply, to which the ordinary Interdict applied, which Cicero calls Quotidianum; the other of Vis Armata, which had been obtained by Caecina against Aebutius. The plaintiff had to prove that he was in possession of the premises, and had been ejected by the defendant or his agents (familia or procurator, Cic. pro Tull. 29). If the matter came before a judex the defendant might allege that he had complied with the Interdict, "restituisse," though he had not done so in fact; but this was the actual form of the sponsio, and the defendant would succeed before the judex if he could show that he was not bound to restore the plaintiff to his possession (Pro Caecin. 8, 32).

The defendant might put in an answer (exceptio) to the plaintiff's claim for restitution; he might show that the plaintiff's possession commenced either vi, clam or precario with respect to the defendant (pro Caecin. 32, pro Tull. 44); but this exceptio was not allowed in the case of vis armata (Pro Caecin. 8, 32). The defendant might also plead that a year had elapsed since the violence complained of, and this was generally a good plea; for the Interdict contained the words "in hoc anno." But if the defendant was still in possession after the year, he could not make this plea; nor could he avail himself of it in a case of Vis Armata (Cic. ad Fam. XV.16).

clandestina possessio is a possessio in which the possessor takes a thing (which must of course be a moveable thing) secretly (furtive) and without the knowledge of the person whose adverse claim to the possession he fears. Such a possessio, when it was a disturbance of a rightful possessio, gave the rightful possessor a title to have the Interdict de clandestina possessione for the recovery of his possession. All traces of this interdict are nearly lost; but its existence seems probable, and it must have had some resemblance to the Interdictum de vi. The exceptio clandestinae possessionis was quite a different thing, inasmuch as a clandestina possessio did not necessarily suppose the lawful possession of another party.

The Interdictum de Precaria possessione or de Precario applied to a case of Precarium. It is Precarium when a man permits another to exercise ownership over his property, but retains the right of demanding the property back when he pleases. It is called Precarium because the person who received such permission usually obtained it by request (prece); though request was not necessary to constitute Precarium, for it might arise by tacit permission (Paulus, S. R. V. tit. 6 s11). The person who received the detention of the thing, obtained at the same time a legal possession, unless provision to the contrary was made by agreement. In either case the permission could at any time be recalled, and the possessio, which in p644its origin was justa, became injusta, vitiosa, as soon as restitution was refused. Restitution could be claimed by the Interdictum de Precario, precisely as in the case of Vis; and the sole foundation of the right to this Interdict was a vitiosa possessio, as just explained. The Precarium was never viewed as a matter of contract. The Interdictum de Precario originally applied to land only, but it was subsequently extended to movable things. The obligation imposed by the Edict was to restore the thing, but not its value, in case it was lost, unless dolus or lata culpa could be proved against the defendant. But from the time that the demand is made against the defendant, he is in mora, and, as in the case of the other Interdicts, he is answerable for all culpa, and for the fruits or profits of the thing; and generally, he is bound to place the plaintiff in the condition in which he would have been, if there had been no refusal. No exceptions were allowed in the case of a Precarium.

The origin of the Precarium is referred by Savigny to the relation which subsisted between a patronus and his cliens, to whom the patronus gave the use of a portion of the ager publicus. If the cliens refused to restore the land upon demand, the patronus was entitled to the Interdictum de Precario. As the relation between the patronus and the cliens was analogous to that between a parent and his child, it followed that there was no contract between them, and the patron's right to demand the land back was a necessary consequence of the relation between him and his cliens (Festus, s.v. Patres). The precarium did not fall into disuse when the old ager publicus ceased to exist, and in this respect it followed the doctrine of possessio generally [Agrariae Leges]. It was in fact extended and applied to other things, and, among them, to the case of pledge [Pignus].

Gaius (IV.156) makes a third division of Interdicta into Simplicia and Duplicia. Simplicia are those in which one person is the plaintiff (actor), and the other is the defendant (reus): all Restitutoria and Exhibitoria Interdicta are of this kind. Prohibitoria Interdicta are either Simplicia or Duplicia: they are Simplicia in such cases as those, when the praetor forbids any thing to be done in a locus sacer, in a flumen publicum, or on a ripa. They are Duplicia as in the case of the Interdictum uti Possidetis and Utrubi; and they are so called, says Gaius, because each of the litigant parties may be indifferently considered as actor or reus, as appears from the terms of the Interdict (Gaius, IV.160).

Interdicta seem to have been also called Duplicia in respect of their being applicable both to the acquisition of a possession which had not been had before, and also to the recovery of possession. An Interdict of this class was granted in the case of a vindicatio, or action as to a piece of land against a possessor who did not defend his possession, as, for instance, when he did not submit to a judicium and give the proper sponsiones or satisdationes. A similar interdict was granted in the case of a vindicatio of an hereditas and a ususfructus. Proper security was always required from the person in possession, in the case of an in rem actio, in order to secure the plaintiff against any loss or injury that the property might sustain while it was in the possession of the defendant. If the defendant refused to give such security he lost the possessio, which was transferred to the plaintiff (petitor). (Rudorff, Ueber das Interdict Quem Fundum, &c., Zeitschrift, vol. IX).

"By all these Interdicts Possession is protected, and possession in itself, in its immediate form as power, in fact, over a thing. Possession thus obtains a legal existence, which is simply connected with that fact. This pure reception of possession among Rights is not perplexed by the consideration of the rightful or wrongful origin of the possession, which origin has no effect with respect to the protection given to possession. The Injusta Possessio, that is, the possession which has been acquired vi, or clam or precario, is certainly not protected against the person from whom it has been acquired by the possessor by any one of these three vitia possessionis; but apart from this case, the Injusta Possessio gives the same claim to protection as the Justa (Dig.43 tit. 17 s2). The Interdicts arise out of Possessio, and indifferently whether it is Justa or Injusta; only, if two possessors claim against one another, a former and a present possessor, of whom the one has obtained possession from the other vitiose, the former is not protected against the latter (Dig.43 tit. 17 s1 § 9); Puchta, Institutionen, &c., II. § 225.

(For other matters relating to the Interdict see Gaius, IV.138‑170; Paulus, S. R. V. tit. 6; Dig.43; Savigny, Das Rechts des Besitzes, pp403‑516; Savigny and Haubold, Zeitschrift, vol. III pp305, 358, 421; Keller, Ueber die Deductio quae moribus fit and Das Interdictum Uti possidetis, Zeitschrift, vol. XI; Rudorff, Bemerkungen über dasselbe Interdict, Zeitschrift, vol. XI; Puchta, Institutionen, &c., II. §§ 169, 225.)

The Author's Note:

1 "Edict" is the word used by Gaius, but he means Interdict. He uses Edict, because the Interdict would only be granted in such cases as were provided for by the Edict (certis ex causis), and thus an Interdict was only an application of the Edict to a particular case.

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