CERTI
CERTI,
INCERTI AC´TIO are names used
to denote two varieties of Roman actions, viz. those in which what is
claimed is a determinate sum of money, thing or things, and those in which
the claim is for something indeterminate, respectively.
Whether an actio is
certi or
incerti is to be ascertained by looking at the
intentio of its formula. In actions which were Real
in form as well as in substance (i. e. those tried
per
formulam petitoriam, Gaius, 4.92) the object or right claimed
was specified in the
intentio (Gaius, 4.3), so
that the action may be said to be
certi, as
Gaius (4.54) seems to have considered it. But it is in personal actions,
especially those on contract, that the opposition is most strongly marked.
Where the plaintiff's contention was that a specific sum of money or a
specific object was due to him from the defendant, the
intentio was
certa, and ran (e.
g.) “si paret reum decem sestertios dare oportere (condictio
certi),” or “si paret reum tritici vini &c. centum
modios dare oportere (condictio triticaria).” But where what he
claimed was not of this determinate character, but he merely asked that a
sum of money due to him as damages should be ascertained by the judge, the
intentio was
incerta, and was characterised by the words “quicquid
[reum] dare facere oportet” (Gaius, 4.47, 136, 137). This was the
case in
condictio incerti and in the
bonae fidei judicia. The terms
certa and
incerta are also
applied by Gaius (4.49-52) to another constituent part of the formula, viz.
the
condemnatio, which was
certa when a specific sum of money was fixed in it,
incerta when not. The first was the case only where
the claim was for an ascertained sum of money (Gaius, 4.50). In all other
actions the
condemnatio would either be
absolutely
incerta (or
infinita, Gaius, 4.51), as in a Real action, or
incerta cum taxatione, e.g. “judex reum
[p. 1.407]duntaxat decem
milia condemna:” here the judge might fix the damages below the
sum named, but he could not exceed it without rendering himself liable to an
action (Gaius, 4.52).
[
J.B.M]
