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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
In formulary system of Roman procedural law, the actions which are called iudicia legitima –actions
founded upon law 22 , expire directly, even if no decision is given after eighteen months have elapsed from
the conclusion of the litis contestatio 23 . Besides, the actions which are called iudicia imperio continentia –
actions derived from the authority of a magistrate 24 expire directly, even if no decision is given when the
service period of the magistra who has accepted the action’s formula is over 25 . Thus, if in the first action,
the joinder of issue phase is concluded, it is impossible to maintain an action subsequently with reference
to same contentious issue. Such an obligation, is considered as an obligatio naturalis 26 , because no action
is granted for this kind of obligation (D. 1, 5, 25) 27 .
According to Gaius 4, 107; if however a personal action is based on a statement that has been brought by
the formula relating to the claims under the civil law, an action can not subsequently be maintained with
reference to the same matter by operation of law and for this reason an exception will be superfluous. If
however, a real action or a equitable personal action based upon fact, should be brought, proceedings may
nevertheless subsequently instituted, by operation of law, and based on this account an exception on the
ground that the question has already been decided, or that issue has been joined, will be necessary 28 .
Praetor turns definite judgement to account by himself spontaneously, that is ipso iure if the action fulfil
these conditions; First of all, the action must be an action founded upon law. Secondly, it must be a
personal action. And lastly, the formula of this action must be in form of in ius concepta.
condemn the said freedman to pay to the said patron the sum of ten thousand sesterces. If the case should not be proved,
discharge him. The other formulas mentioned in the Edith with reference to the summoning on the parties into court, refer to
matters of fact; as for instance, against a person who, having been summoned into court, neither appeared nor appointed anyone
to defend him; and also against one who rescued by force a party who was summoned to appear and in conclusion innumerable
other formulas of this description are set forth in the register of the praetor. Gai. 4, 47; In some instances, however the praetor
permits formulas having reference to either law or fact to be employed; for example in actions deposit and loan for use. The
following formula is one of law.”Let So-and So be the judge. Whereas Aulus Agerius deposited a silver table with Numerius
Negidius, for which this action is brought, whatever Numerius Negidius is obliged to pay to, or do for Aulus Agerius in good
faith, on this account, do you judge, condemn Numerius Negidius to pay to, or do for Aulus Agerius, unless he makes
restitution; and if the case should not be proved, let him be discharged. The following formulas one of fact. Let so-and so be the
judge. If it appears that Aulus Agerius deposited a silver table with Numerius Negidius and through the fraud of the said
Numerius Negidius, the said table has not been restored to the said Aulus Agerius, do you judge condemn Numerius Negidius
to pay to Aulus Agerius a sum money equal to the value of the property and if the case is not proved, let him be discharged.
Similar formulas are employed in an action of loan for use. Zulueta, p. 195.
22 Gai. 4, 104; Actions founded upon law (iudicia legitima), are those which are brought in the City of Rome or within the first
mile-stone from that city, between Roman citizens before a single judge. Those brought under the Lex Iulia Iudiciaria expire
after the lapse of a year and six months, unless they have been previously decided; and this is the reason why it is commonly
stated that under the Lex Iulia a case dies after a year and six months have elapsed. Umur, (Dictionary), p. 95;
23 Pugliese, G.; Il Processo Civile Romano, Il Processo Formularae, V. II, Milan, 1963, p. 275 (Processo); These arrangements
are settled by Lex Iulia Iudiciaria.
24 Gai. 4, 105; Actions derived from the authority of a magistrate (iudicia imperia continentia) are those brought before several
judges, or before a single judge, if either latter or one of the litigants is an alien. These actions belong to the same class as those
which are brought beyond the first mile-stone from the City of Rome; whether the parties litigant are Roman citienzs or aliens.
Cases of this kind are said to be derived from the authority of a magistrate, for this reason that the proceedings are only valid as
long as he who directed them to be instituted retains his office. Umur, (Dictionary), p. 96;
25 Zulueta, p. 277; This distinction is not the same as that between a civil and a praetorian action. Hence, a praetorian action
would be iudicia legitima if it fulfils the conditions, and a civil action would be iudicia imperio continentia if it fulfils the
conditions.
26 Longo, G.; Ricerche sull’”Obligatio Naturalis”, Milan, 1962, p. 19 sp.; For obligatio naturalis, no action is laid, but they can
be made effective in other ways. There are some kinds of this obligation and each kind shows its effects to the different extent.
27 Pugliese, p. 413 (Actio); Tahiroglu/Erdogmus, (Matters), p. 196.
28 “Gai. 4, 107; Si vero legitimo iudicio in personam actum sit ea formula, quae iuris civilis habet intentionem, postea ipso iure
de eadem re agi non potest, et ob id exceptio supervacua est; si vero vel in rem vel in factum actum fuerit, ipso iure nihilo
minus postea agi potest, et ob id exceptio necessaria est rei iudicatae vel in iudicium deductae”.
GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 144