In Roman law, the word actio refers to a civil lawsuit. At first sight, it seems obvious that actio derives from the verb ago, which has the basic meaning “to drive,” “to urge,” or simply “to act.” The Roman jurists themselves clearly regarded ago as the verb corresponding to the noun actio and meaning “to conduct a lawsuit” (cf. Festus, Gloss. Lat. 21, l. 15, s.v. agere). Hence, actio may be explained as referring to the claimant urging the judge (and/or the adversary) to do something,1 or simply to the claimant’s actions in court.2 Some scholars have proposed different etymologies. It seems possible that actio is not a derivative of ago (“to drive, to urge”), but of a root agjō meaning “to speak” (cf. the verb aio), and that the word was only later associated with ago.3 Alternatively, it has been argued that ago and aio have a common root that, in the context of archaic law, refers to a performative utterance which affects the Roman citizens collectively.4
The legis actiones
The earliest procedural model of Roman law is known as the procedure of the legis actiones. The meaning of lex in the term legis actio is not clear. The Roman jurist Gaius explains that the legis actiones were introduced by or based on a lex: an act of the people’s assembly (Gai. Inst. 4, 11). Many modern scholars believe that in truth the word lex in the term legis actio does not refer to a law approved by the people (lex publica), but to the verbal formulas which the parties were required to pronounce in order to avail themselves of a legis actio. If this explanation is true, then a legis actio is an actio based on the speaking of a preconceived formula.5 The fact that the actiones of archaic law required the pronunciation of certain verbal formulas gives additional support to the theory that the word actio itself originally referred to the act of speaking and is connected with the verb aio.
It should be noted that not all legis actiones were lawsuits. Gaius lists five types of legis actio. Of these, only three (legis actio sacramento, legis actio per iudicis arbitrive postulationem and legis actio per condictionem) were remedies for the enforcement of claims. The other two (legis actio per manus iniectionem and legis actio per pignoris capionem) were execution mechanisms.6
The Formulary Procedure
Preconceived formulas continued to play an important role in Roman civil procedure when the procedure of the legis actiones was gradually replaced by the formulary procedure from the mid-3rd century bce onward. Yet under the new procedural model, the formulas no longer had to be pronounced by the litigants. The parties presented their case informally to the magistrate. The magistrate would then appoint a citizen as a judge (iudex) to decide the case. The formula issued by the magistrate contained instructions for the judge. This new type of formula gave the formulary procedure its name. While the first formulas may have been invented ad hoc by the magistrate in order to provide for a remedy in a case in which no legis actio was competent, the text of formulas for different types of claims was quickly standardized. Each incoming magistrate announced the formulas that he was willing to grant during his term in his edict, taking over the bulk of the text from the edict of his predecessor. The edict of the praetor, who was the most important magistrate exercising jurisdiction in Rome, became immutable after the jurist Salvius Iulianus had revised the material at the behest of emperor Hadrian around 135 ce.
Under the formulary procedure, names were given to different actiones based on the formula by which they were governed. A buyer suing the seller would bring the actio empti, while the seller could rely on the actio venditi. Tort claims for damage to property arising under the Aquilian law of 286 bce could be pursued by bringing the actio legis Aquiliae. The term actio was ambivalent: it referred both to the procedural remedy and to the underlying substantive claim. No distinction was made between the two.7
The formulas were carefully drafted; their structure was the object of intense discussion among the Roman jurists. Certain actiones were grouped together because of common features. Thus, the actiones that served to enforce real rights like the right of ownership in movable or immovable property or a servitude attaching to a piece of land were called actiones in rem. They were distinguished from personal actions (actiones in personam, Gai. Inst. 4, 1–2) for the performance of a contract or the fulfillment of an obligation arising, for instance, from delict or unjust enrichment. Actions with a formula that included a reference to good faith and thus afforded the judge a large margin of discretion in adapting the remedy to the circumstances of the case were referred to as actiones bonae fidei (Ulpian Dig. 16, 3, 1, 23; Inst. Iust. 4, 6, 28 cf. Gai. Inst. 4, 62). New remedies based on sets of facts not covered by the traditional actiones were called actiones in factum or actiones utiles.8 When the formula instructed the judge to apply a legal fiction, the Roman jurists spoke of an actio ficticia (Ulpiani regulae 28, 12; Gai. Inst. 4, 34). Later, the jurists of the Ius Commune introduced further subclasses of actiones.
In Roman legal texts, the three words actio petitio persecutio appear frequently together (e.g. Ulpian Dig. 14, 6, 1 pr. quoting the Senatusconsultum Macedonianum; Julian Dig. 46, 8, 23 quoting the praetor’s edict; Lex Ursonensis 125–132). In this tripartite term, certain remedies are apparently classified as petitio or persecutio, and actio seems to be used in a narrower sense. Despite the efforts of the Roman jurists to clarify the meaning of the three words (Papinian Dig. 44, 7, 28; Ulpian Dig. 50, 16, 178, 2), it is impossible to assign a precise technical meaning to each of them.9
The cognitio Process
From the beginning of the imperial age, the formulary procedure was replaced by a new procedural model, just as it had replaced the legis actiones a few centuries earlier. The division of the trial into a first phase before the magistrate and a second one before the judge was abandoned. With this, the formulas and the distinction between various actiones lost their original importance. In 342 ce, the use of the formulas was explicitly forbidden (Cod. 2, 57, 1).10
Even after the abolition of the formulas, the jurists continued to discuss the actiones and to use the traditional names and classifications. Justinian’s Institutes contain a title on actions (“De actionibus,” Inst. Iust. 4, 6), and a treatise under that title was published as late as in the late 5th or early 6th century.11 Byzantine jurists coined ἀγωγή as the Greek equivalent of actio. Yet, the meaning of actio/ἀγωγή changed. The reference to the substantive requirements of the claim became dominant.12 However, even in Justinian’s time, the jurists did not completely separate procedural and substantive aspects.13 The Roman concept of actio with its distinctive ambivalence thus became part of the European legal tradition.
Casavola, Franco. Actio petitio persecutio. Naples: Jovene, 1965.Find this resource:
Fiori, Roberto. Ea res agatur: I due modelli del processo formulare repubblicano. Milan: Giuffrè, 2003.Find this resource:
Gröschler, Peter. Actiones in factum. Berlin: Duncker & Humblot, 2002.Find this resource:
Kaser, Max, and Karl Hackl. Das römische Zivilprozeßrecht. 2d edn. Munich: C. H. Beck, 1996.Find this resource:
Lenel, Otto. Das Edictum perpetuum: Ein Versuch zu seiner Wiederherstellung. 3d edn. Leipzig: Tauchnitz, 1927.Find this resource:
Mantovani, Dario. Le formule del processo civile romano. 2d edn. Padua: CEDAM, 1999.Find this resource:
Martín Minguijón, Ana Rosa. Acciones ficticias y acciones adyecticias: Fórmulas. Madrid: Dykinson, 2001.Find this resource:
Mercogliano, Felice. “Actiones ficticiae”: Tipologie e datazione. Naples: Jovene, 2001.Find this resource:
Metzger, Ernest. “Actions.” In A Companion to Justinian’s Institutes, edited by Ernest Metzger, 208–228. Ithaca, NY: Cornell University Press, 1998.Find this resource:
Miceli, Maria. Sulla struttura formulare delle “actiones adiecticiae qualitatis,” Turin: Giappichelli, 2001.Find this resource:
Zimmermann, Reinhard. The Law of Obligations. Munich and Cape Town: C. H. Beck and Juta, 1990.Find this resource:
(1.) Ernest Metzger, “Actions,” in A Companion to Justinian’s Institutes, edited by Ernest Metzger (Ithaca, NY: Cornell University Press, 1998), 208.
(2.) Franz Wieacker, Römische Rechtsgeschichte, vol. 1 (Munich: C. H. Beck, 1988), 557.
(3.) Ulrich Manthe, “Agere und aio: Sprechakttheorie und Legisaktionen,” in Iurisprudentia universalis: Festschrift für Theo Mayer-Maly zum 70. Geburtstag, edited by Martin J. Schermaier et al. (Cologne: Böhlau, 2003), 441.
(4.) Annette Ruelle, “Sacrifice, énonciation et actes de langage en droit romain archaïque (‘agone?’, lege agere, cum populo agere),” Revue Internationale des Droits de l’Antiquité 49 (2002): 206; similarly Bernardo Albanese, “Quattro brevi studi,” Labeo 46 (2000): 361, n. 15.
(5.) Manthe, “Agere und aio,” 444.
(6.) Joseph Georg Wolf, “Der Legisaktionenprozeß,” in Recht im frühen Rom, by Joseph Georg Wolf (Berlin: Duncker & Humblot, 2015), 45.
(7.) Max Kaser and Karl Hackl, Das römische Zivilprozeßrecht (2d edn; Munich: C. H. Beck, 1996), 235–236.
(8.) See Peter Gröschler, Actiones in factum (Berlin: Duncker & Humblot, 2002), 286–290, on the precise meaning of the two terms; and Mike Macnair, “Arbitrary Chancellors and the Problem of Predictability” in Law and Equity, edited by Egbert Koops and Willem Zwalve (Leiden: Martinus Nijhoff, 2013), 80, n. 4, on the various attempts to translate them into English.
(9.) Kaser and Hackl, Zivilprozeßrecht, 236, n. 32; cf. Franco Casavola, Actio petitio persecutio (Naples: Jovene, 1965).
(10.) Kaser and Hackl, Zivilprozeßrecht, 170–171; cf. Antonio Guarino,“Aucupatio syllabarum,” in Mélanges en l’honneur de Carlo Augusto Cannata, edited by Roland Ruedin (Basel: Helbing & Lichtenhahn, 1999), 167–169.
(11.) Francesco Sitzia, De actionibus: Edizione e commento (Milan: Giuffrè, 1973), 75–115.
(12.) Reinhard Zimmermann, The Law of Obligations (Munich and Cape Town: C. H. Beck and Juta, 1990), 28.
(13.) Hans Julius Wolff, “Prozeßrechtliches und materiellrechtliches Denken in rechtsgeschichtlicher Beleuchtung,” in L’Europa e il diritto romano: Studi in memoria di Paolo Koschaker, vol. 2 (Milan: Giuffrè, 1954), 421–422.