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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
In Ordo iudiciorum privatorum procedure, the actions are carried out in two stages. The first stage is
constituted before a magistrate (praetor) and the second stage is constituted before the iudex. The plaintiff
and the defendant explain the contentious issue by exposing their claims and defences before praetor.
This is called the proceeding in iure. At the close of the proceeding in iure, the second stage of the civil
procedure begins. This stage is named as proceeding apud iudicem 15 . If praetor believes that there is a
real enmity between the parties, he grants an action, if not, he refuses to grant an action. But the decision
of granting an action or refusing to grant an action given by praetor is completely different from the
decision given by the judge at the end of an action. This means that, the decision of praetor does not
regarded as a res iudicata like the decision of the judge given at the end of an action as condemning or
discharging the plaintiff, nor it does not produce the effects of joinder of issue phase. In other words, the
plaintiff can ask for an action about this contentious issue from another praetor.
At this point, we must find out whether praetor turns definite judgement to account by himself,
spontaneously or definite judgement can only be taken into consideration intervention by an exception 16 .
Bringing an action subsequently before the court with reference to the same contentious issue of the first
action is prohibited whether by ius civile, ipso iure or by praetorian law, ope exceptionis 17 . Under the
older procedure of legis actiones, definite judgement is taken into consideration in all cases at civil law,
ipso iure, that is spontaneously by iudex. But under the classical formulary procedure, a different method
is operated: Definite judgement is taken into consideration ope exceptionem when the action is a real
action (actio in rem) 18 or if it is a personal action (actio in personam) 19 when the proceedings are by
iudicium imperio continens 20 or when the formula is in factum concepta 21 . During the actions in the form
of iudicia legitima, iudex takes definite judgement into consideration spontaneously.
liable by the joinder of issue. But if judgement is rendered against him, the obligation produced by the joinder of issue is
disposed of, and he becomes liable under the judgement. This is the reason why it was stated by the ancient authorities that a
debtor is compelled to make payment before issue has been joined; for after this has been done, he will be liable if judgement
should be rendered against him, and if he is condemned, he will be compelled to satisfy the judgement”; Betti, p. 601 sq.
14 Marrone, M.; “L’Efficacia Pregiudiziale delle Sentenza nel Processo Civile Romano”, Annali Palermo, V. 24 1955, p. 304
sq.; Wenger, p. 179; Litis contestatio phase, has a special feature like renewing the obligation. That is why, an obligation which
has ended by renewing in joinder of issue phase, can not be a subject of action.
15 Schulz, s. 14; Zulueta, p. 226; At this stage, the judge, whom is charged to give up a claim, examines the plaintiff’s claim and
then pronounces the judgement about either the dismission of the plaintiff or condemnation of the defendant. Proceeding apud
iudicem is oral and informal. But parties have a right to be heard, but if one party does nor appear , the judgement goes against
him.
16 Pugliese, G.: “L’Actio e la Litis Contestatio nella Storia del Processo Romano” Studi in Onore di Enrico Tullio Liebman, V.
1, 1979, p. 411 sq. (Actio)
17 Marrone, p. 317; Provera, p. 24.
18 Gai. 4, 3; A real action is one in which we either claim some corporeal property to be ours, or that we are entitled to some
particular right in the property, for instance, the right of use and enjoyment; or the right to walk and drive through the land of
another; or to conduct water from his land; or to raise the height of a building, or to have the view unobstructed; or when a
negative action is brought by the adverse party.; Zulueta, p. 228; The distinction in rem and in personam is a physical
distinction.
19 Gai. 4, 2; A personal action is one which we bring against anyone who is liable to us under a contract, or on account of a
crime, that is what we claim is that he is bound to give something, to do something or to perform some service.
20 Gai. 4, 103; Actions are either founded upon law or are derived from the authority of a magistrate.
21 Gai. 4, 45; We say that the formulas in which a question of right is involved, are founded in law; as for instance, when we
assert that any property belongs to us by quiritarian right, or that the adverse party is obliged to pay us something, or make
good a loss to us as a thief, for these formulas and others are those in which the claim is based on the Civil Law. Gai. 4, 46; We
say that other formulas are based upon questions of fact, that is, where a claim of this kind is not made with reference to them;
but where a fact is stated in the beginning of a formula, words are added by which authority is given to the judge to condemn or
discharge the defendant. This kind of a formula is employed by a patron against his freedman, when the latter brings him court
contrary to the Edict of the praetor for then it is in the following terms: Let so-and so be judges. If it is established that suchand
such a patron, was brought into court by such-and such freedman, contrary to the Edict of such-and such praetor –judges,
GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 143