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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.)


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