Page:Catholic Encyclopedia, volume 9.djvu/110

 LAW

85

LAW

The pnetorian resiUviio in integrum was an equitable lestoration of the parties to their former situation, and could be invoked for metus (duress), dolus (fraud), minority, and generally by all who had suffered hard- ship through no fault of their own.

Obligations and rights of action arose also out of ddidumj which was the voluntary penal violation of human law. Delicts were either actual or c|uasi- delicts — ^the former deliberate, the latter neghgent. When public, they were crimes; when private, torts. Instances were: furtum (theft), either manifest or con- cealed; rapina (robbery with violence); damnum in^ jfoia datum (injury to property); and injuria (a kind oi outrage, or defamatory wrong by worn or action). Jnfurtumf the thief could be prosecuted either civilly or criminallv, and in the civil action the thin^^ or the penalty could be recovered. The Roman criminal law imposed a fine to the fiacua and corporal or capi- tal punishment. Justinian abolished mutilation and capital punishment for theft and substituted fines and exile. Rapina, like furtumy required a criminal intent. Where the putative owner, in the belief of ownership, sought to recover his property by violence, this was not robbery, but the offence against public order was punished by the loss of the property with- out, however, any fine to the fiscus. Damage to the property of another injuria datum was the subject matter of the Aquilian Law, and the damage must have been inflicted by a freedman; if by a slave, it was A noxal tort; if by a quadruped, the tort and liability were designated pauperies. The measure of damages in injuria depended upon the atrocity of the wrong and the status of the parties; the right of action accrued to the father for injuria to the son; to the husband, for the wife; to the master, for the slave, etc. Quasi- delictual obligations were torts or wrongs based on culpa (fault or negligence), and not upon dolus (evil intent). An instance was where anything was negli- gently or carelessly thrown from a house (dejecta vet effusa). Quasi-deuctual, also, were the obligations of persons employed in a public calling, such as shi{)- masters ana innkeepers, for the wrongful acts of their servants.

C. Actions. — Adjective Law. — An action was the legal means for the enforcement of a right, and the Roman law included in the term actio both the ri^ht of action and the action itself. Actions were petitory, when ihey sought to recover the very thing in con- troversy, or possessory, where the right of p>ossession only was in issue. Specific nominate actions were provided in most of the relations between men, and ^diere the relations were innominate there were ac- Hones in factum, prcescriptis verbis, and condiciiones ex lege.

Aocordinff to their origin, actions were civil or honorary, the latter emanating either from the praetor or from tiie sediles. Civil actions were either directed or uHles: dvreda, if brought in the express words of the law or by the logical paries; tUileSy if brought upon equitable facts not within the strict letter, and possi- hly. in the case of a ceded action, by the nominal plamtiff for the use of the real plaintiff. Actions aiming to establish personal status were called pre- judicial. R^Eil actions were vindicationes; personal irere condictiones,

Rei vindicatio and the Publician action went to the question of ownership. Succession gave rise to the hereditas petUio and to the querela inojficiosi. Servi- tudes were affirmed or denied by an actio confessoria or negatoria. In pledge, there was the Servian or quasi-Servian action. The praetor or the sedile granted equitable actions, such as the actio ad exhibendum for the production of moveables; the actio in factum de edendo, an action of accoimt against bankers; and the redhtbitaria and quanH minoris, actions for redhibition ttid abatement of the price. The actions based on duress, fraud, and minority were purely equitable, and

there was a condictio sine causa in cases of failure of consideration. This may be considered as equitable or as growing out of quasi-contract. Indeea, all of the^ quasi-contractual relations had their appropriate actions. Private wrongs, too, were redressed in suit- able forms of action. In delicts the recovery might be simply the value, as in the persecutory actions; or double the value, as in the actio furti nee manifesti and in the action for corrupting a slave. In some in- stances, a triple, or even quadruple, recovery might be had.

Actions founded on the consensual contracts of sale, hire, emphyteusis, partnership, and mandate, and on the real contracts of commodatum, depositum, and pignus were actions bonce fidei: so also, the actio proiscriptis verbis for innominate contracts and the quasi-contractual actions neyotiorum gestorum, fune- raria, tutelce, etc., as well as the personal action here- ditas petitio.

The actio ex stipulatu and the condictio ex chiro' grapho were actions of strict law {stricli juris).

An arbitrary action was one in which a non-com-

gliant party was forced to comply or be held liable in a irger discretionary sum.

Certain exemptions to judgment debtors were favoured by the Roman law; among these was the beneficium competentice.

Ordinarily the foundation of liability was personal, yet one might incur liability through the act of an- other — ^as a son, a slave, or even a stranger. The actio quod jussu was properly brought against father or master for an act done by his order. The master of a ship, whether freeman or slave, by a sort of necessary agency could incur liability for the ship-owner and the right of action was enforced by the actio exerdloria. Similar in theory was the actio institoria which was the proper form in which to bring an action against one who had placed another in chai^ge of a shop for the buying and selling of wares. The age and condition of the institor were immaterial. The praetor ^ave an actio de peculio to persons who contracted with son or slave in respect to the pecidium, and this action was effective against the father or master to the extent of the peculium.

Aside from the specific remedies sought in particular cases, actions were perpetual or temporary, aepending upon the lapse of time. Perpetual actions were or- dinarily such as were barred by thirty years' prescrip- tion, while temporary actions were Barred by shorter periods.

Exceptions or pleas to actions, like actions them- selves, were civil or prsetorian; and in general were perpetucB and peretnptorUe (complete pleas in bar); or temporarice (only dilatory).

The developed written altercations, or pleadings, of the parties were as f oUows : the actor (plaintiff) brought his actio, which the reus (defendant) met with his ex- ceptio (plea). To this the plaintiff could reply with a replicatio, which in turn might be met with a dupli- catio, and in exceptional cases the pleadings might ad- vance to a triplicatio and a quadruplicatio.

The interoicts were formulae, or conceptions of words, whereby the praetor, in an invent cause or in one affecting the public interest, ordered or forbade something to be done. They were, in effect, pro- hibitory or mandatory injimctions; they were pro- hibitoria, as against violence to possession, obstruct- ing a public place, etc.; they were restitutoria, to restore possession, etc.; and, finally, exhibitoria, as for the production of a free man or for the production of a will. The object to be attained by a possessory interdict was to receive, to retain, or to recover pos- session. The interdicts quorum bonorum and quod legatorum had to do with successions. The Salvian and quasi-Salvian interdicts were used for foreclosure in pledge obligations.

(The subject of Roman criminal law is beyond the