PRAESCRI´PTIO
PRAESCRI´PTIO In its original signification, as a
legal term of art, this word seems to denote a component part in the
formulae of some Roman actions at law, the name being derived from the fact
that this part stood first and before all others: “praescriptiones
appellatas esse ab eo quod ante formulas praescribuntur plus quam
manifestum est” (Gaius, 4.132). Such praescriptiones might be
inserted in a formula in the interest either of the plaintiff (
actor) or of the defendant (
reus). “Praescriptiones pro actore” occur in the
formulae of actions in which the plaintiff is entitled from the defendant to
a number or variety of acts
primâ facie
hanging together, but of which one only, or at least not all, are claimed in
the present suit: and by the praescriptio beginning “
ea res agatur, let the present trial relate
exclusively to so and so,” the plaintiff reserved his right of
action upon the other acts, or those subsequently to fall due, it being a
presumption of Roman law (capable, however, of being rebutted by the
insertion of a praescriptio in the formula) that when a man instituted an
action, it comprised all his claims against the defendant, prospective no
less than present, so far at least as they related to the present ground of
action, and already had at least a potential existence. Two examples are
given by Gaius (4.131). In the one, a man to whom an annuity is payable, say
every six months, sues for a half-year's instalment, using the praescriptio
“ea res agatur cujus rei dies fuit” (cf.
Cic. de Orat. 1.37, 168); in the other,
the purchaser of an estate, claiming its conveyance to him by the form of
Mancipatio, reserves to himself the right of subsequently demanding its bare
traditio by a praescriptio in the form “ea res agatur de fundo
mancipando.” Such “praescriptiones pro actore” seem
to have been in use throughout the formulary period of Roman civil
procedure, from
circ. 170 B.C. to 294 A.D.
“Praescriptiones pro reo” were the mode of expressing in the
formula of an action certain defences against the plaintiff's case. These
defences resembled exceptiones in that they were not allowed to be urged at
the hearing of the cause unless they had been embodied in the formula of the
action, and also in their nature as the allegation of a countervailing
right, vested in the defendant, not a direct traverse or denial of the
plaintiff's argument: they resembled “praescriptiones pro
actore” in being prefixed to the formula, and also apparently in
always being introduced by the same words “ea res agatur”
(Gaius, 4.133-137). Among them were the pleas that the suit in question
ought not to be tried at all, because its decision would prejudge a
causa major, Gaius, 4.133 [
PRAEJUDICIUM], and that the
action was beyond the jurisdiction of the court ( “praescriptio fori,”
Dig. 2,
8,
7, pr.), or barred by lapse of time ( “praescriptio
temporis” ). It is difficult to see why the Roman law required
some defences by way of countervailing right to be stated in the form of a
praescriptio and others in that of an exceptio. The difference between them
was partly formal, partly material. An exceptio was placed in the formula
between the Intentio and the Condemnatio: a Praescriptio, as Gaius observes,
was prefixed to and stood at the head of the formula, its object being to
indicate to the judex that lie was first to examine into the truth or
falsehood of the defence advanced, and if he found it well grounded to
suspend the hearing either altogether, or at any rate (e. g. in praescriptio
praejudicii) until the obstacle was removed. Consequently in practical
result an exceptio was more favourable to a defendant than a praescriptio;
for if a defence so formulated was established, the defendant was entitled
to judgment in his favour, and the plaintiff could not sue again (Gaius,
4.123), whereas in the case of a praescriptio the trial of the action was
only suspended, so that the defendant might possibly be condemned after all.
But even as early as the time of Cicero (
de Invent. 2.20,
59), the practice had commenced of expressing in the form of an exceptio
defences which strictly should have been formulated as praescriptiones, the
praetor perhaps himself favouring the change because “facilius reis
succurrit quam actoribus” (Gaius, 4.57); and Gaius says (ib. 133)
that in his time “praescriptiones pro reo” were entirely
obsolete: “in speciem exceptionis deducuntur.” The result was
that the original difference in meaning between the terms exceptio and
praescriptio was gradually forgotten, so that they came to be used as
practically synonymous, and in the Corpus Juris of Justinian this is shown
by Savigny to be the case (see e. g.
Dig. 5,
1,
52,
3;
31,
34,
3;
44,
2,
29;
46,
3,
91;
48,
5,
15,
7), though for some defences one of them was more
commonly and consistently employed than the other. (See Savigny,
System, 4.309; 5.163.)
One of these praescriptiones, the original nature and history of which have
thus been
[p. 2.481]briefly sketched, has furnished general
jurisprudence with one of its most famous terms, viz. the Praescriptio
temporis, or plea by the defendant that an action is barred or prescribed by
lapse of time. Under the older Roman law all suits were, as it was said,
perpetuae; there being no Statute of
Limitations, to use an English phrase, or other rule of law providing that
rights of action should be barred unless sued upon within a definite period
from their accrual. The praetor, however, ordained that many of the new
actions which he introduced through the Edict should lie only within an
annus utilis from the moment at which the
right of bringing them first accrued (Gaius, 4.110; Justin.
Inst. 4.12, pr.). Far the most important of these
annales actiones were the praetorian penal actions,
with the exception of that on
furtum manifestum
[
FURTUM], which was
perpetua because it substituted a pecuniary penalty
for capital punishment (Gaius, 4.111): though even these were
perpetuae so far as they were
rei
persecutoriae, i.e. were brought only to deprive the delinquent of
any benefit he had derived from his wrong (
Dig. 44,
7,
35, pr.). Praetorian
actions which merely compensated the plaintiff at the cost of the
defendant's pocket (e. g. the
actio doli) were
prescribed in a year if
contra jus civile (Dig.
l.c.): interdicts, so far as they were penal,
were similarly limited: actions for the recovery of property which had been
for a defined time in the hands of a bonâ--fide possessor with
justus titulus without being acquired by
usucapio were barred in ten or sometimes twenty years [
USUCAPIO], and certain actions
on sales, which were introduced through the Edict of the curule aedile, had
a prescription of twelve or six months (
actiones
redhibitoria and
aestimatoria:
see
EMPTIO VENDITIO).
In course of time, too, a period of prescription was fixed by disconnected
legislation for other suits, especially one of five years for the
querela inofficiosi testamenti [
TESTAMENTUM] (Cod. 3, 28,
36, 2); and in Gaius' time (4.110) actions which fell under the original
rule of non-limitation were called
perpetuae,
those which were limited by any of these periods
temporales.
More systematic legislation upon the subject commenced with Constantine, who
enacted that all real actions which were not already limited might be
repelled by an exceptio unless brought within forty
anni
continui (Cod. 7, 39, 2), which subsequently seem to have been
reduced to thirty (Symm.
Epist. 5.52). Theodosius II. (A.D.
424) subjected to this same thirty years' limit all actions whatsoever, with
a few exceptions, which had hitherto been
perpetuae (Cod. ib. 3); and his law was retained by Justinian,
the only actions of importance which were not governed by it being
vindicatio in libertatem (Cod. 7, 22, 3), fiscal
claims for unpaid taxes (Cod. 7, 39, 6), and the
actio
hypothecaria, to which last an additional ten years only was
allowed. Consequently, in Justinian's compilations
actio
perpetua means not what it did in Gaius' time, but an action
which is barred in not less than thirty years.
For the history of the “Praescriptio longi temporis,” which
gradually developed into a mode of acquisition, and so gave rise to our term
“Prescription” as a title to property and
“real” rights less than ownership, see
USUCAPIO (Savigny,
System, 5. § § 237-255; Puchta,
Institutionen, § 208.)
[
J.B.M]
