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]
