Actio in factum

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In Roman law , the actio in factum represented a formula that was developed by praetors by analogy with already existing types of complaint. The legal formula related to cases, the facts of which were not covered by an already existing edictal legal formula ( actio ).

It had become necessary where the legal development no longer allowed the use of a recognized wording under the law of action, be it that the dispute was based on an atypical contract constellation ("unnamed contract"), or that the meaning of a legal term had changed . In compensation law , for example, originally only damaging events that resulted from “direct effects” on the legal interest could be prosecuted. The relevant actio legis aquiliae was used ; In the course of time, a changed definition of damage meant that “indirect effects” could also lead to claims. Since the formula of the Aquiline complaint formula was very solidified and therefore could not be applied, the actio in factum was formed in order to be able to record the deviating factual situations.

Since the words of the law were not used, the plaintiff described the facts in the demonstratio when applying for the actio in factum and obtained the legal consequences of the law in the intensio . The initiator was able to personally submit the proposal for a draft formula. The praetor issued the binding definition of the formula (with concrete facts).

Difficulties in delimitation could arise from the business area of locatio conductio, for example when exchanging and the resulting specific types of action, actio empti or actio venditi , since, based on the Sabine doctrine, the exchange was a subtype of purchase where the seller and buyer faced each other.

If the negotiated facts did not remain an isolated case in the future, the formula used, the actio in factum, was permanently incorporated into a praetoric edict ( edictum perpetuum ).

See also

literature

  • Max Kaser : Roman private law . 2nd Edition. CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , § 51, p. 206.
  • Max Kaser / Karl Hackl : Das Römische Zivilprozessrecht : Verlag CH Beck, Munich 1996, second edition, ISBN 3-406-404901 , § 32, pp. 238–239, § 47, pp. 330–331.

Individual evidence

  1. ↑ a b Heinrich Honsell : Roman law. 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 153 f.
  2. ↑ a b Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . P. 188 ff.