Obligations in Roman Law: Past, Present, and Future

Chapter 6. Obligations in Classical Procedure

158 Chapter 6 Obligations in Classical Procedure Ernest Metzger The Praetor’s Court Roman civil procedure developed and evolved like any other body of law, with perhaps one unique difference: the pressures for reform regularly took place under the very gaze of the praetor. He was witness to the wasted time, the overeager plaintiffs, the reluctant defendants, and the shameless airing of private affairs. He was uniquely placed to see, understand, and respond to problems. His responses took the form of various tools or “devices,” such as stipulations, actions, defenses, and oaths. With such devices, he could enforce or encourage appropriate behavior toward his tribunal. This essay discusses the use of obligations as a device to reform civil procedure . The thesis is a very simple one. First, the civil law equipped the praetor with relatively few rules of procedure. He made up the deficiency in the civil law by actively creating rules of procedure himself. Second, the praetor’s lawmaking frequently took the form of actions and stipulations, which is to say, obligations. Accordingly, the discussion that follows offers a selection of examples in which the law of procedure was reformed with the aid of obligations . Given the scarcity of evidence on procedure, the examples offered are some of the few in which both the earlier state of the law and the “remedial” obligation are discernible to us. The discussion closes with a few comments on the usefulness of obligations as against other devices. Foreword on the Law of Procedure This exercise—­ isolating obligations within the law of procedure—rests on the Obligations in Classical Procedure 159 mild anachronism that classical Roman law contained a “law of procedure.” In the modern day, we speak of a law of procedure simply because it suits us to set apart rules that deal with litigation. We do so for the benefit of practitioners or as an aid to law reform or for developing principles.1 These were never priorities for the Romans.2 We are also more comfortable than the classics at least with the notion of abstract rights that exist separately from the machinery of justice;3 wherever the two are still engaged, it is harder to find a law of procedure. Yet even without a law of procedure, the praetor knew perfectly well that tribunals needed to be managed, that litigants misbehaved, and that rules and devices could help to avoid disruption. This is why it makes sense to discuss how the praetor responded to procedural problems, notwithstanding the absence of a law of procedure. Admittedly, using modern categories tends to make discussions like the present one somewhat artificial. For example, the penal stipulations described by Gaius in the fourth book of his Institutes are treated as procedural in this essay because they were intended to discourage vexatious litigation.4 These stipulations are not so different in formulation from the (nonprocedural) actio depensi, which gave an actio in duplum to a surety who was not reimbursed by the principal debtor within six months.5 But there is no error of anachronism in calling the one procedural and the other nonprocedural , unless we allow ourselves to believe that the praetor, in carrying out his reforms, was prompted to do so by peculiarly modern motives or priorities.6 It would be wrong, for example, to assume that the praetor reformed the law in order to make it more systematic or to champion some principle of modern procedural law. But there is none of this sort of anachronism in this essay. To the contrary, this essay suggests that the praetor reformed the law in response to the changing character of Roman litigation. 1. On the last of these, see Kaser and Hackl, Das römische Zivilprozessrecht (1996) 8–­ 11; Seidl, Römische Rechtsgeschichte (1971) 162–­ 67. 2. The Romans themselves did not cultivate a law of procedure. Book 4 of Gaius’s Institutes, though lucid and informative on procedure, is not a systematic work. It was not until the twelfth century that systematic study of procedure based on Roman law began: see van Caenegem , History of European Civil Procedure (1973) 11, 16–­ 17. 3. See Metzger, “Actions” (1998) 214–­ 17; Donahue, “Ius in the Subjective Sense in Roman Law” (2001); Jolowicz, Roman Foundations of Modern Law (1957) 66–­ 81. 4. Gaius 4.171. 5. Gaius 3.127, 4.9; Pauli Sententiae 1.19.1. 6. See Hoetink, “Les notions anachroniques dans l’historiographie du droit” (1955) 10. See also n. 6 and the accompanying...