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PER CONDICTIO´NEM This form of statute process (legis actio), says Gaius (4.18), was so called because the plaintiff gave notice to the defendant to be present in court on the thirtieth day after the notice, in order that a judex might be appointed ( “condicere autem denuntiare est prisca lingua:” compare Gel. 10.24; Paul. ex Festo, s. v. condicere; Bruns, p. 239). It was a form of personal action, that is, an action founded on an obligation between the parties to it, and applicable in those cases in which the plaintiff claimed that the defendant was bound to transfer to him ownership of a thing (qua intendit dari oportere). This legis actio was introduced by a Lex Silia, the date of which is uncertain (according to Voigt it was between 325 and 329 A.U.C.; see on this subject Muirhead's Intr. 1.40, n. 3), in the case of a money debt, and by a Lex Calpurnia, the date of which is also uncertain, in the case of any other definite thing (certa res). Gaius, who wrote long after the legis actio had ceased to be the ordinary procedure, observes that it does not appear why this form of action was needed, for in the case of an obligation to transfer (dari oportere) there were the forms of action by sacramentum and per judicis postulationem. The best conjectural explanation of this difficulty seems to be that the judicis postulatio was only applicable to particular obligations defined by statute, and was not, like the legis actio per condictionem, a general action for the recovery of a debt, and that the process of condictio was less formal and more convenient to suitors than that by sacramentum.

According to Keller (Civ. Proc. 2.18, ed. Wach) and some other modern writers (cf. Eisele, Except. p. 158; Bekker, Act. 1, 75), the notice in condictio was an informal proceeding executed out of court, the parties being thus saved the preliminary appearance before the magistrate, and the necessity of using solemnia verba. But that the notice did not require the presence of the magistrate seems improbable, considering the formal character of the legis actio, and the statement of Gaius (4.29) that in all legis actiones except pignoris capio, the proceedings took place “apud praetorem praesente adversario” (for other reasons, see Keller, op. cit., note by Wach). The denuntiatio would, however, be a summary proceeding; and when the parties reappeared on the thirtieth day to receive a judex, the plaintiff would simply state that he claimed certa pecunia or certa res from the defendant without giving the ground of his claim at this stage, and thus the action would be allowed, not only on account of money lent (pecunia credita), but in all cases where the property of the defendant had been unjustifiably increased at the expense of the plaintiff (see Baron, Die Condictionem, and Muirhead, Intro [p. 2.367]p. 234). But it was necessary that certa pecunia or certa res should be claimed, and thus the plaintiff ran the risk of plus petitio. [ACTIO Vol. I. p. 19.]

A party to condictio escaped the liability of having to pay a summa sacramenti to the mnagistratus [SACRAMENTUM]; but it seems probable that a sponsio and restipulatio, a kind of judicial wager, had to be entered by the parties when they came to receive a judex, at least in the case of pecunia credita; the sum staked was a third part of the object of contention. Sir Henry Maine (Early Inst. Lecture ix.) regards the sponsio and restipulatio as the essential feature of condictio, and the sponsio and restipulatio as a means adopted by litigants of settling disputes, instead of having recourse to violence. According to his view of the condictio, the wager was entered into by the parties immediately on notice being given, and not, as is generally supposed, on the appearance of the parties before the magistrate to receive a judex. The action called condictio under the formulary procedure developed out of the legis actio per condictionem, but the notice whence the legis actio took its name was discontinued. The condictio was either an actio de certa pecunia with a sponsio tertiae partis, or an actio de certa re, called condictio triticaria, an expression probably in use in the legis actio period, or, which was an extension of the action, condictio incerti, i. e. where the obligation was not in respect of certa pecunia or certa res. The condictio was the ordinary personal action when the formulary system was established, and was considered in later times as the typical actio in personam. As actio stricti juris, condictio was opposed to actio bonae fidei. (Keller, Deer rom. Civilprocess, ed. by Wach; Bethmann-Hollweg, Der röm. Civilprocess; Karlowa, Der röm. Civilprocess zur Zeit d. Legis actiones; Baron, Die Condictionem; Muirhead, Introduction to the Private Law of Rome, § § 40, 41.)


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