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BOOK IV. Chapter 11.

formula qua utitur patronus contra libertum, qui eum contra edictum praetoris in ius vocavit ; nam in ea ita est: RECVPERATORES SVNTO. SI PARET illum PATRONVM AB illo illius PATRONI LIBERTO CONTRA EDICTVM illius PRAETORIS IN IVS VOCATVM ESSE, RECVPERATORES illum LIBERTVM illi PATRONO SESTERTIVM X MILIA CONDEMNATE S. N. P. A. Ceterae quoque formulae, quae sub titulo de in ius vocando' propositae sunt, in factum conceptae sunt, velut adversus eum qui in ius vocatus neque venerit neque vindicem dederit;—et denique innumerabiles eiusmodi aliae formulae in albo proponuntur.'

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Ib. § 47: Sed ex quibusdum causis praetor et in ius et in factum conceptas formulas proponit, veluti depositi et commodati. Illa enim formula, quae ita concepta est: IVDEX ESTO. QVOD AVLVS

AGERIVS APVD NVMERIVM NEGIDIVM MENSAM AR-
GENTEAM DEPOSVIT, QVA DE RE AGITVR, QVIDQVID
OB EAM REM NVMERIVM NEGIDIVM AVLO AGERIO

1 But those formulae in which is raised a question of law we call in ius conceptae. Such are those in which we allege that something is ours by Quiritarian Law, or that it ought to be given to us. . . in which the intentio appertains to civil law. § But other formulae we call in factum conceptae; those, namely, in which no such intentio is drawn up, but at the beginning of the formula, after a specification of what has been done, words are added by which power is given to the iudex to condemn or acquit. Of this kind is the formula used by the patron against his freedman who has summoned him into court contrary to the Praetor's Edict, for it contains the following words: 'Let so and so be recuperatores. If it appear that such and such a patron has been summoned into court by such and such a freedman of that patron contrary to the edict of such and such a Praetor, do you, the recuperatores, condemn that freedman to pay to such patron 10,000 sesterces; and if it do not so appear, acquit him.' The other formulae also which are set forth under the title de in ius vocando, are framed in factum ; as for example, that against him who when summoned into court has neither appeared nor furnished a protector;—and there are, in fine, innumerable other formulae of the same kind set forth in the Edict.

DARE FACERE OPORTET EX FIDE BONA EIVS, IVDEX,
NVMERIVM NEGIDIVM AVLO AGERIO CONDEMNATO

[NISI RESTITVAT]; SI NON PARET, ABSOLVITO, in ius
concepta est. At illa formula, quae ita concepta
est I.E. SI PARET AVLVM AGERIVM APVD NVMERIVM
NEGIDIVM MENSAM ARGENTEAM DEPOSVISSE EAMQVE
DOLO NVMERII NEGIDII AVLO AGERIO REDDITAM NON
ESSE, QUANTI EA RES ERIT, TANTAM PECVNIAM IVDEX
NVMERIVM NEGIDIVM AVLO AGERIO CONDEMNATO;
S. N. P. A., in factum concepta est.1

BOOK IV. Chapter II.

(2) Actiones in factum, in contrast with the actiones vulgares. By the latter are understood the actions for which definite, established formulae (conceived in ius or in factum) were set up in the Edict; by the former, those actions which-in the Edict generally only promised-did not possess a typical formula, so that the formula was specially composed for the particular case, according to its individuality. Moreover, the formula for this itself could again either be conceived in factum, or contain a iuris civilis intentio (quidquid paret d. f. o.'). § 133. The latter was the case in respect of actiones (incerti) in factum civiles (s. praescriptis verbis) that is, actions which spring from transactions recognised in the Civil Law, but not provided with a special name, the formulae for which therefore

1 But in respect of certain causes the Praetor puts forth both formulae in ius conceptae and formulae in factum conceptae; for example, in the actions on a deposit and on a loan. For that formula is in ius concepta which is drawn up thus: 'Let so and so be iudex. Whereas Aul. Ager. has deposited with Numer. Negid., the silver table in question, whatever on account of this Num. Neg. ought in good faith to give or to do to Aul. Ag., do thou, iudex, condemn Num. Neg. to give or to do to Aul. Ag., unless he make restoration. If it do not so appear, acquit him.' But that is a formula in factum concepta which is drawn up thus: Let so and so be iudex. If it appear that Aul. Ag. has deposited with Num. Neg. a silver table, and that this through the fraud of Num. Neg. has not been restored, do thou, iudex, condemn Num. Neg. to pay to Aul. Ag. such amount as the thing shall be worth. If it do not so appear, acquit him.'

a

BOOK IV.

Chapter 11.

a See § 126.

b See § 24.

§ 29.

contained a representation of the essential de facto elements of the legal matter concerned (praescripta verba), in lieu of the demonstratio technically setting forth the ground of action, and had therefore to be differently framed for each concrete case."

Pap.: Nonnumquam evenit, ut cessantibus iudiciis proditis et vulgaribus actionibus, cum proprium nomen invenire non possumus, facile descendamus ad eas, quae in factum appellantur. -D. 19, 5, 1 pr.'

Pomp.: Quia actionum non plenus numerus esset, ideo plerumque actiones in factum desiderantur. Sed et eas actiones, quae legibus proditae sunt, si lex iusta et necessaria sit, supplet praetor in eo quod legi deest: quod facit in lege Aquilia reddendo actiones in factum accommodatas legi Aquiliae, idque utilitas eius legis exigit.—1. 1 1 eod.*

Actiones 'stricti iuris,' bonae fidei' (which in the intentio incerti had the addition ex fide bona') and 'arbitrariae' have already been considered.

$201. INTERDICTA.

The further judicial proceedings required in the event of non-compliance with the Interdictum issued by the magistrate, in the Restitutory and Exhibitory interdicts were associated either immediately with the

1 It sometimes happens that if the actions which have been created by the courts and are in common use do not suffice, since we can find no special name, we readily resort to those which are called upon the case.'

2 From the fact that the number of actions is not complete, actions in factum are therefore generally wanted. But those actions also which have been created by statutes, if the statute is reasonable and necessary, are completed by the Praetor in respect of that which is lacking in the statute. This he does in respect of the l. Aquilia by granting actions in factum formed after the analogy thereof; and the usefulness of the statute demands it.

issue of the interdict (formula arbitraria), or they were accomplished by a 'sponsio et restipulatio poenalis' to be given by one of the parties (i.e., promise and counterpromise of a penal sum in the event of the Praetor's order being contravened, or of its not being contravened); concerning which an ordinary iudicium obtained, and to these, in case the plaintiff had succeeded, was then further annexed an arbitrium affecting the thing itself, with eventual condemnation of the defendant in damages (secutorium iudicium).

Gai. iv. § 141: Nec tamen cum quid iusserit fieri aut fieri prohibuerit, statim peractum est negotium, sed ad iudicem recuperatoresve itur et ibi editis formulis quaeritur, an aliquid adversus praetoris edictum factum sit, vel an factum. non sit, quod is fieri iusserit.'

Ibid. §§ 162-4: Si igitur restitutorium vel exhibitorium interdictum redditur, velut ut restituatur ei possessio qui vi deiectus est, aut exhibeatur libertus cui patronus operas indicere vellet, modo sine periculo res ad exitum perducitur, modo cum periculo. § Namque si arbitrium postulaverit is cum quo agitur, accipit formulam quae appellatur arbitraria; et iudicis arbitrio si quid restitui vel exhiberi debeat, id sine periculo exhibet aut restituit, et ita absolvitur; quodsi nec restituat neque exhibeat, quanti ea res est condemnatur; sed et actor sine poena experitur cum eo, quem neque exhibere neque restituere quicquam oportet.-§ Observare autem debet is qui vult arbitrum petere, ut statim petat, antequam ex iure exeat, i.e. antequam a praetore discedat.2

1 The matter is not, however, immediately concluded when he has ordered or forbidden the doing of something, but it goes before a iudex or recuperatores, and there, upon the issuing of formulae, the question is raised whether anything has been done contrary to the Praetor's Edict, or whether what he ordered to be done has not been done.

If, therefore, a restitutory or exhibitory interdict be granted, for example, that possession shall be restored to a person who

BOOK IV.

Chapter II.

BOOK IV. Chapter 11.

Ib. § 165 Itaque si arbitrum non petierit, sed tacitus de iure exierit, cum periculo res ad exitum perducitur: nam actor provocat adversarium sponsione, ni contra edictum praetoris non exhibuerit aut non restituerit, ille autem adversus sponsionem adversarii restipulatur; deinde actor quidem sponsionis formulam edit adversario, ille huic invicem restipulationis: sed actor sponsionis formulae subiicit et illud iudicium de re restituenda vel exhibenda, ut si sponsione vicerit, nisi ei res exhibeatur aut restituatur, [quanti ea res erit, adversarius ei condemnetur].'

Ib. § 169: Cascelliano sive secutorio iudicio de possessione reciperanda experitur ;

has been forcibly ejected, or that a freedman shall be produced upon whom a patron desires to impose services, the matter is sometimes brought to an issue without risk, sometimes with risk. For if the defendant has demanded an arbitrator, he receives a so-called formula arbitraria; and if by the award of the iudex he has to restore or produce something, he restores or produces it without any penalty, and so is discharged from liability; but if he do not restore or produce it, he is condemned to pay its value. But the plaintiff also sues a man who is not under obligation to produce or restore anything, without making himself liable to any penalty.-§ Now he who wishes to claim an arbitrator should make his claims before going out of court, that is, before he leaves the Praetor's presence.

1 Hence, if he have not claimed an arbitrator, but have left the court in silence, the matter is carried on to its issue at his risk. For the plaintiff challenges his opponent with a wager: 'Unless in defiance of the Praetor's Edict he shall have failed to produce or to restore,' and the latter takes a counter-stipulation as against the wager of his opponent. Next, the plaintiff delivers to his opponent the formula of his wager, and the defendant in his turn delivers to the other the formula of the counter-stipulation. But the plaintiff joins to the formula of the wager another action for restitution or production of the thing, so that if he succeed on his wager, and the thing is not produced or restored, [his opponent shall be condemned for the value of the thing].

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