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INTERDICTUM

INTERDICTUM In certain controversies, chiefly when possession or quasi-possession (possession of a servitude) is in dispute, the praetor or proconsul intervenes in a paramount or sovereign capacity, and commands some performance or forbearance; which commands, formulated in solemn terms, are called “interdicts” or “decrees” --decrees, when he commands that something be performed; for instance, when he orders that something be produced, or something be restored: interdicts, when he forbids some act; as when he forbids the violent disturbance of a possession, unimpeachable on the ground of defects (sine vitio; see below), or the desecration of consecrated ground. Interdicts, then, are orders either of restitution (restitutoria, obliging a person to make over property to another), or of production (exhibitoria), or of abstention (prohibitoria). (Gaius, 4.139, 140, ed. Poste.) This passage contains the essential distinction between an ordinary actio and an interdiction, so far as the praetor or proconsul is concerned. In the case of an actio, the praetor pronounces no decree, but simply issues a formula appointing a judex, whose business it is to investigate the matter in dispute, and to pronounce a sentence consistently with the formula which is his authority for acting. In the case of an actio, therefore, the praetor neither orders nor forbids a thing to be done, but he says simply, “Judicium dabo” (I will grant a trial). In the case of an interdict, the praetor makes an order that something shall be done or shall not be done, and his words are accordingly words of command: “Restituas, exhibeas, vim fieri veto.” This direct interposition of the magistrate is appropriately expressed by the word principaliter, which does not, as some writers have supposed, refer to the fact of the command being the first formal proceeding in order of time, but to its being a special act of magisterial interference.

It is probable that interdicts were first given by the magistrate in cases where there was no statutory action (legis actio), and the interference of the supreme executive authority was required in the interest of law and order. In this way protection was given to public and sacred property, as public roads, rivers, temples, altars; the exercise of family and proprietary rights was made more secure, and new rights of praetorian origin were established. Something of a penal character attached to the interdict procedure, the sponsio or wager, which the parties to it entered into, in order that their rights under the interdict might be determined, being always poenalis, i.e. paid as a penalty by the unsuccessful to the successful party, and not a mere matter of form (praejudicialis). This kind of penalty may have taken the place of the multa or fine, by which disobedience to the interdict was originally punished.

The interdict procedure, as described by our authorities, was not more summary in its character than the ordinary procedure in an action, but it is probable that it consisted at first of an absolute command, which the magistrate, as guardian of public order, compelled obedience to, after holding an informal inquiry to satisfy himself that the law had been broken. In granting interdict process the magistrate did not exercise jurisdictio, but simply an act of imperium, and he determined at first without the assistance of a judex whether his authority should be interposed. Thus the interdict belonged to cognitio extraordinaria, not to cognitio ordinaria.

But in course of time the interdict lost its summary character, the praetor finding it more convenient to transmit interdict cases to a judex than to determine them himself. Accordingly, he made his command or prohibition conditional, at the same time directing the parties to the proceeding to stake a wager (sponsio) on the question to be decided by a judex whether the interdict had been violated. Thus, if a party to whom an interdict was directed, refused to admit the claim of his opponent, the subsequent proceedings resembled in their main features those of an ordinary action. Even the distinction as to the mode of commencing the proceedings by an authoritative order instead of by giving a judex seems to have been sometimes disregarded. Thus Savigny observes that in one of the most important interdicts, that de vi, the formula is, “Judicium dabo” (Dig. 43, 16, pr.). But, as he explains, the old genuine formula was, “Restituas” (Cic. pro Caecin. 8.23) ; and the “Judicium dabo” must have been introduced when the formulae of the two old interdicts (de vi armata and de vi quotidiana) were blended together, and at a time when the distinctions between interdictum and actio had become a matter of indifference.

The mode of proceeding as to the interdict was as follows. The party aggrieved, having summoned the defendant to court, stated his case to the praetor, which was the foundation of his demand for an interdict, and was therefore analogous to the postulatio actionis. If the magistrate, after hearing the parties, saw sufficient primâ facie reason, he might grant the interdict, which was often nothing more than the words of the edict addressed to the litigant parties, with the addition that the subjectmatter of the dispute was designated. Thus the cases in which the praetor would grant an interdict were provided for in his album with appropriate forms. The praetor, before granting an interdict, made no inquiry into the merits of the case, but simply determined the previous questions whether under the alleged circumstances the interdict applied for was applicable; [p. 1.1019]and if so, how it should be framed. An interdict, like all decrees of a magistrate, was delivered orally, but its terms were registered in the praetor's book (tabulae, codex), and a copy was perhaps given to the complainant (Bethmann-Hollweg, Civ. Proc. § 98): hence edere interdictum is equivalent to reddere interdictum.

The interdict laid down the conditions which were to determine whether the defendant was liable or not. If he had violated its terms, he was bound to make restitution to the complainant; and if he did so, the dispute was of course at an end, in which case the proceeding would be a summary one. This is not stated by Gaius, but follows of necessity from the nature of the case; and when he says, that when the praetor has ordered anything to be done, or forbidden anything to be done, the matter is not then at an end, but the parties go before a judex or recuperatores, he means that this further proceeding takes place, if the praetor's edict does not settle the matter. If the parties disputed whether the terms of the interdict had been violated or not, it was necessary that further application should be made to the praetor within a year from the time when the interdict had been granted. Thus, when the praetor's order did not terminate the dispute, he directed that an action should be tried, and for this purpose framed a formula by which the judex, recuperatores, or arbiter named in it were instructed as to the case they were to try. The inquiry would be, whether anything had been done contrary to the praetor's edict, or whether that had been done which he had ordered to be done: the former inquiry would be made in the case of a prohibitory interdict ; and the latter in the case of an exhibitory or restitutory interdict. The word interdictum was, strictly speaking, only applicable to the prohibitory command, decretum being the term for a command of a positive nature, but interdictum became the general term for commands of either kind. The subsequent course of the proceedings depended on the question, whether the action was based on a sponsio (as was at first invariably the case), or a formula arbitraria was granted. In the case of a prohibitory interdict, there was always a sponsio: that is, the parties were required by the magistratus (in jure) to deposit or give security for a sum of money, the loss of which was in the nature of a penalty (poena) to the party who failed before the judex.

In the case of an exhibitory or restitutory interdict, the proceeding was sometimes per sponsionem, and therefore before a judex or recuperatores, and sometimes without any sponsio, being tried under a formula arbitraria [ACTIO] by a judex or arbiter. When the formula of the interdict was framed in the latter way, it ceased to be penal in character. A defendant in an interdict proceeding of an exhibitory or restitutory kind might claim a formula arbitraria, if he did so at the first stage of the proceedings, when they were before the magistrate (in jure); if he omitted to claim in due time, a sponsio was necessary. A plaintiff might sue, as he pleased, either per sponsionem or per formulam arbitrariam (Gaius, 4.162; Ulp. Fragm. 7, 8; Cic. pro Tull. § 53). In Cicero's time the formula arbitraria seems not to have been allowed in the case of vis armata (Bethmann-Hollweg, Civ. Proc. § 98, n. 107; Keller, Sem. ii. p. 340). In the case of Caecina (Cic. pro Caecin. 8, 23) a sponsio had been made: Cicero says, addressing the recuperatores, “Sponsio facta est: hac de sponsione vobis judicandum est.” When the matter came before a judex or arbiter, the course of proceeding was, generally speaking, similar to the ordinary action [ACTIO].

The chief division of interdicts (restitutoria, exhibitoria, prohibitoria) has been stated. The, purposes to which they were applicable were various. Thus, under Jus publicum and sacrum, we find, interdictum de via publica, de flumine publico, de locis sacris (religious); under the law of status and family law, interdictum de homine libero (corresponding to our writ of habeas corpus), de homine liberto, liberis exhibendis. But the greater number of interdicts were given for the protection of private property, and more especially for the protection of possession.

The importance of what are called the possessory interdicts is that the praetor, in granting them, takes no account of title to property, but simply assists the person who is in actual possession of property. Thus he gives a thief or malâ--fide possessor the benefit of such interdicts, as well as an owner or a bonâ--fide possessor. The owner cannot escape liability under them by setting up the plea of title. The question to be determined, when these interdicts are in question, is not one of right, but of fact. [POSSESSIO]

Interdicts relating to possession are divided into those for the purpose of acquiring possession, retaining possession, or recovering possession (Gaius, 4.144).

The Interdicta adipiscendae possessionis causa were not strictly possessory interdicts, as Savigny has shown (Das Recht des Besitzes, p. 410), since they are not founded on former or actual possession, but on some other title, as on a title of pledge or of bonorum possessio. The Interdictum quorum bonorum, so called from its initial words, belongs to this class of interdict; it was given to the bonorum possessor (BONORUM POSSESSIO; Dig. 43, 2, 1). Its operation was to compel a person who had possession of the property of which the bonorum possessio was granted to another, to give it up to such person, whether the person in possession of such property possessed it under a claim of right or not. The bonorum emptor was entitled to an analogous interdict, which was called Possessorium [BONORUM EMPTIO]. An interdict called Sectorium was granted to a person who bought goods at a public auction in order that he might thereby obtain possession of them; the name sectores being applied to persons who bought property in such manner (Gaius, 4.146; Cic. pro Rosc. Am. 36, 103).

The Interdictum Salvianum was granted to a landlord; it enabled him to take possession of the stock of his tenant (colonus) who had hypothecated it for his rent (Dig. 43, 3).

The Interdicta retinendae possessionis causa were granted for the protection of a person in actual possession. A person was considered to be in actual possession who had the physical control of a thing, and who intended to deal [p. 1.1020]with the thing as his own. [POSSESSIO] There were two interdicts by which a person in possession was protected, named respectively Uti possidetis and Utrubi, from the initial words of the Edict. The Interdictum uti possidetis applied to land or houses, and the other to movables. The Uti possidetis protected the person who at the time of obtaining the interdict was in actual possession, provided he had not obtained possession from the other party (adversarius) either by violence (vi), or by fraud (clam), or as his tenant at will (precario), which were the three vitia possessionis (Festus, s. v. Possessio; Gaius, 4.160). In the case of the Interdictum utrubi, the possession of the movable thing was by the interdict declared to belong to him who had possessed the thing during the greater part of the previous year, “nec vi nec clam nec precario” (Gaius, 4.151). If a person had acquired possession from another, he might count the time during which the person from whom he acquired was in possession. In the time of Justinian the person who was in actual possession when the proceedings commenced was entitled to this interdict, whether he had been in possession for the greater part of the previous year or not.

An Interdictum recuperandae possessionis might be claimed by him who had been forcibly ejected (vi dejectus) from his possession of an immovable thing, and its effect was to compel the wrongdoer to restore the possession or to make good all damage. The initial words of the interdict were, “Unde tu illum vi dejecisti;” and the words of command were “ei restituas” (Cic. pro Caecin. 30, 88; pro Tull. § § 29, 44 ;--Gaius, 4.154; Dig. 43, 16, 1). There were two cases of vis: one of vis simply, to which the ordinary interdict applied, which Cicero calls quotidianum; the other of vis armata, such as was obtained by Caecina against Aebutius. The plaintiff had to prove that he was in possession of the premises, and had been ejected by the defendant or his agents (familia or procurator, Cic. pro Tull. § 29). The defendant might put in an answer (exceptio) to the plaintiff's claim for restitution; he might show that the plaintiff's possession commenced either vi, clam, or precario with respect to himself (pro Caecin. 32, 92; pro Tull. § 34); but this exceptio was not allowed in the case of vis armata (pro Caecin. 8, 22; 32, 93). The defendant might also plead that a year (annus utilis) had elapsed since the violence complained of, but this plea could not avail in a case of vis armata (Cic. Fam. 15.1. 6).

The Interdictum de precaria possessione or de precario was the remedy by which a thing could be recovered from a person who held it by the lease and licence of another, but not under a contract. It is called precarium because the person who received such permission usually obtained it by request (prece); but express request was not necessary to constitute a precarium, for it might arise by tacit permission (Paul. Sent. Rec. 5.6, 11). The person who was permitted to have detention of the thing obtained at the same time interdict possession of it, unless it was otherwise agreed. In either case the permission could at any time be recalled, restitution being enforced by the Interdictum de precario, as in the case of vis. In the later period of Roman law a regular action was given for the recovery of the precarium, as in the case of depositum ; nevertheless the precarium was never regarded as a contract in the strict sense. The Interdictum de precario originally applied to land only, but it subsequently extended to movable things. The liability imposed by the Edict was to restore the thing, but not its value, in case it was lost, unless dolus or culpa lata could be proved against the defendant. But from the time that the demand is made against the defendant, he is in mora, and, as in the case of the other interdicts, he is answerable for all culpa, and for the fruits or profits of the thing; and generally he is bound to place the plaintiff in the condition in which he would have been if there had been no refusal. No exceptions were allowed in the case of a precarium. The origin of the precarium is referred by Savigny to the relation which subsisted between a patronus and his cliens, to whom the patronus gave the use of a portion of the ager publicus. If the cliens refused to restore the land upon demand, the patronus was entitled to the Interdictum de precario. As the relation between the patronus and the cliens was analogous to that between a parent and his child, it followed that there was no contract between them, and the patron's right to demand the land back was a necessary consequence of the relation between him and his cliens. (Festus, s. v. Patres.) The precarium did not fall into disuse when the old ager publicus ceased to exist [AGRARIAE LEGES]. It was in fact extended and applied to other purposes: thus a mortgagor might have possession of a thing under a precarium with the mortgagee.

Gaius (4.156) makes a third division of Interdicta into simplicia and duplicia. Simplicia are those in which one person is the plaintiff (actor), and the other is the defendant (reus): all Restitutoria and Exhibitoria Interdicta are of this kind. Prohibitoria Interdicta are either simplicia or duplicia. They are duplicia in the case of the Interdictum uti possidetis and Utrubi, because, as in these interdicts each party claims to be in possession, one of them cannot be regarded as plaintiff or defendant more than the other (Gaius, 4.160).

Interdicts were used for the purpose of putting one of two parties to an action in interim possession of a thing till the action was decided (Rudorff, Ueber das Interdict Quem Fundum, &c.; Zeit schrift, vol. ix.). In the Interdicta duplicia, the interim possession of the property in question pending the issue was given to the party who made the highest bid for it: such bidding between the parties for the mesne profits was termed fructuum licitatio (Gaius, 4.166, &c.). In the case of the Interdicta duplicia, it may perhaps have been necessary for the purpose of founding jurisdiction, that the parties should feign an act of violence (vis ex conventu, Gaius, 4.166, Muirhead's ed., which may be equivalent to the vis moribus facta of Cicero, pro Caecin. 1.2; 8.22; DEDUCTOR). In the later period of Roman law there was no difference between interdict procedure and that by which other actions were tried (Inst. 4.15, 8).

(Gaius, 4.138-170; Ulp. Inst. fr. v.-viii.; Paulus, Sent. Rec. 5.6; Inst. 4.15; Dig. 43; Cod. 8, 1, 9; Savigny, Besitz. § § 34-43; [p. 1.1021]Zimmern, Rechtsg. 3. § § 71-74; Keller, Civilproc. § § 74-76; Bethmann-Hollweg, Civilproc. 2.98; Schmidt, Das Interdiktenverfahren, &c.; Huschke, de causa Siliana; Machelard, Théorie des Interdits; Muirhead, Historical Introduction to the Private Law of Rome, § 73.)

[G.L] [E.A.W]

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