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date: 20 October 2020

lex Aebutia

Lex Aebutia (de formulis) was a statute concerning Roman civil procedure. It related to the transition from legis actiones to formulary proceedings. Both its date and detailed provisions are highly debatable. The archaic procedure per legis actiones consisted of two stages, the first of which took place before a magistrate and required the use of formal words, while the second was held before a judge who decided the case. The introduction of formulae (i.e., instructions for judges written by the praetor giving them authority to condemn or free the defendant) simplified the procedure: there were still two stages, but the parties were able to state their case in an informal way, and the defendant was allowed to present circumstances in his favour.

There are very few sources that mention this law. Gaius (Gai. Inst. 4.30) wrote that the legis actiones gradually fell into disuse, because the forefathers had created this law in a way that called for such a high level of exactness that even the slightest formal mistake a party made during the proceedings resulted in his losing the case. That is why the lex Aebutia and the two Julian laws on jurisdiction (see lex Iulia on jurisdiction) abolished the legis actiones, so that the parties could conduct a legal dispute by means of verba concepta, that is by the formulae. In his discussion of the meaning of the term proletarius in the Attic Nights, Gellius (Gell. N.A. 16.10.8) cited the opinion of a jurist friend, who said that the old terminology used in the Twelve Tables was rendered obsolete (literally—put to sleep) by the lex Aebutia. The only exception, he added, were the legis actiones, which were heard by the centumviral court, and these concerned mostly hereditary and status matters, as can be inferred (cf. Cic. De or. 1.173). This information makes it very difficult to determine the scope of the lex Aebutia and to distinguish it from the Julian laws. Gaius (Gai. Inst. 4.31), in fact, wrote that the only legis actiones used after the Augustan reforms were those in the centumviral court and by damnum infectum (i.e., in a situation of danger of property damage caused by the faulty state of the neighbouring building or tree). It would therefore be logical to suppose that the lex Aebutia was not so radical.

The first point to discuss is the date of the lex Aebutia. It is impossible to identify the rogator (proposer), one Aebutius.1 The law must have been passed after the Twelve Tables (451–450 bce), where the only available procedure was per legis actiones, and before the leges Iuliae (17 bce). There is no doubt that the formulae were not created by the lex Aebutia, but they were to some extent raised to the level of a civil procedure. It is very likely that they were first introduced by the peregrine praetor within his imperium for disputes between Romans and foreigners; therefore, 242 bce might be considered the terminus post quem. However, it is also possible that the formulary procedure was already being used earlier by the urban praetor in the bonae fidei iudicia (i.e., civil actions in which the judge was given authority to decide taking into consideration the principles of good faith). Most scholars assume that lex Aebutia was introduced in the latter half of the 2nd century bce. Girard suggested a date between 149 and 123 bce; Kaser opted for the first half of the 2nd century bce; Longo assigned it to the Gracchan period; in Talamanca’s view it must have been passed in the last thirty years of the 2nd century bce. Bertoldi suggested that it could have even been voted after Cicero’s death, as it was never mentioned by him.2 It is highly probable, however, that the lex Aebutia was introduced in the last fifty years of the 2nd century bce.

The second problem is the scope of this law. For a long time it was supposed that it allowed the use of the formulae within the praetors’ imperium. Wlassak argued that the purpose of the lex Aebutia was to give Roman citizens a choice of one of the two procedures, equating both in the light of the civil law (ius civile).3 In Kaser’s view, formulary proceedings were introduced only for the actions for loan (condictiones certae rei and certae creditae pecuniae), replacing the archaic formal action (legis actio per condictionem).4 His theory was based on the fact that the old procedure was still in use in the late Republican period (the only action not mentioned in the later sources being precisely the legis actio per condictionem) and, if it had been possible to use the formulae in every case, the legis actiones would have disappeared completely by that time, because they were the less convenient system. Birks contested that opinion, stating that the coexistence of both systems would not necessarily have led to the extinction of the legis actiones as long as there would have been any advantage in them for plaintiffs. Cannata assumed that the lex Aebutia did not concern the formulary proceedings at all, but it dealt only with abolishing the legis actiones in most cases. Its impact on the spreading of the formulae would have been only indirect. Talamanca’s opinion gained many followers. He argued that the consequence of the lex Aebutia was to give civil effects to the formulae. One major outcome of that would have been to rule out suits by legis actiones in cases where the party had already lost formulary proceedings, in compliance with the principle of ne bis in idem. The problem remains opened. Recently Bertoldi expressed the opinion that the sources do not allow the drawing of any certain conclusions, and nothing can be said for sure about the contents of the law.5

We may therefore conclude that, for some cases, the lex Aebutia gave both procedures an equal status, introducing the formulae into the ius civile in the second half of the 2nd century bce.

Bibliography

Beggio, Tomasso. “Per legem Aebutiam et duas Iulias sublatae sunt istae legis actiones. Alcune considerazioni sull’evoluzione dei iudicia legitima a partire dalla lex Aebutia.” In Il giudice privato nel processo civile romano: Omaggio ad Alberto Burdese, vol. 3. Edited by Luigi Garofalo, 85–140. Padua, Italy: CEDAM, 2015.Find this resource:

Bertoldi, Federica. La Lex Iulia Iudiciorum Privatorum. Turin, Italy: Giappichelli, 2003.Find this resource:

Birks, Peter. “From legis actio to formula.” The Irish Jurist 4 (1969): 356–367.Find this resource:

Birks, Peter, “Lucius Veratius and the lex Aebutia.” In Daube noster: Essays in legal history for David Daube. Edited by Alan Watson, 39–48. Edinburgh: Scottish Academic Press, 1974.Find this resource:

Broughton, T. Robert S. The Magistrates of the Roman Republic: Vol. 1, 509 B.C. –100 B.C. Atlanta: American Philological Association, 1986.Find this resource:

Cannata, Carlo Augusto. Profilo istituzionale del processo privato romano: I, Il processo formulare. Turin, Italy: Giappichelli, 1982.Find this resource:

Fiori, Roberto. Ea res agatur: I due modelli del processo formulare repubblicano. Milano, Italy: Giuffrè, 2003.Find this resource:

Fuentesca Degeneffe, Margarita. “El significado de la lex Aebutia en el ordinamiento procesal romano.” Revue Internationale des Droits de l’Antiquité 54 (2007): 245–274.Find this resource:

Girard, Paul Frédéric. Mélanges de droit romain, vol. I. Paris: Sirey, 1912.Find this resource:

Kaser, Max, and Karl Hackl. Das römische Zivilprozessrecht, 2nd ed. Munich: C. H. Beck, 1996.Find this resource:

Longo Giovanni. “Lex Aebutia.” In Novissimo Digesto Italiano, vol. 9, 795. Turin, Italy: Unione Tipo’grafico Editrice Torinese, 1963.Find this resource:

Metzger, Ernest. A New Outline of the Roman Civil Trial. Oxford: Oxford University Press, 1997.Find this resource:

Metzger, Ernest. Litigation in Roman Law. Oxford: Oxford University Press, 2005.Find this resource:

Paricio, Javier. “Reflexiones acerca de la legalización del procedimiento formulario romano. Sobre la lex Aebutia, la lex Iulia de iudiciis privatis y la supuesta lex Iulia municipalis.” Foro 1 (2004): 96–110.Find this resource:

Rotondi, Giovanni. “Leges publicae populi Romani.” Elenco cronologico con una introduzione sull’ attività legislativa dei comizi romani. Milan, Italy: Società editrice libraria, 1912.Find this resource:

Sacconi, Giuseppina. “Appunti sulla lex Aebutia.” Archivio Giuridico 197 (1979): 63–93.Find this resource:

Tomulescu, Constantin St. “The Role of the lex Aebutia.” The Irish Jurist 6 (1971): 136–146.Find this resource:

Wlassak, Moriz. Römische Prozeßgesetze, vol. I–II . Leipzig: Duncker, 1888–1891.Find this resource:

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