PER CONDICTIO´NEM
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.)
[
E.A.W]
