Legis actio per iudicis arbitrive postulationem

The legis actio per iudicis arbitrive postulationem was a rulings process from the early republican process of legislative action . The two-part procedure required a legal assessment by the magistrate and the subsequent factual assessment for the legal assessment. With the legis actio per iudicis arbitrive postulationem claims from promises of debt were enforced or estates were divided. In its capacity as an action for division of estates, it was not about the adversarial claims of two parties, but about the mere organization of the division.

In contrast to the already from the past of the Twelve Tables arising legis actio Sacramento is on a bet amount ( sacramentum omitted). The losing party was not exposed to the risk of losing the stake to the temple treasure. On the one hand, the renewal of the procedure serves to improve the position of the mostly poorly financed debtor who, due to lack of assets, could not have led a process at the beginning because he would not have been able to raise the commitment ( sacramentum ) required by oath , which profaned the process . The advantage of this type of process was that the success of the process did not depend on a bet, but on correct process behavior.

The legis actio per iudicis arbitrive postulationem can also be viewed as an accelerated procedure, since the judge appointed by the praetor and at the same time appraisal judge ( iudex arbiterve ), after establishing the legality of the claim, simultaneously determines the legal consequence in the form of the amount of money to be paid . In the previous legisl actio sacramento , however, only the correctness of the claim is checked and negotiated. If the plaintiff is assured, the matter is referred to an appraisal judge ( iudex arbiter ) to determine the amount in dispute .

Legal source

Gaius : Gaii Institutiones : 4, 17, 17a.

literature

Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 22nd
Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 373.
Max Kaser / Karl Hackl: Das Römische Zivilprozessrecht : Verlag CH Beck, Munich 1996, second edition, ISBN 3-406-404901 , § 4, pp. 34-37, § 15, pp. 107-111, § 19, pp. 122

Individual evidence

^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 22nd
↑ ^a ^b Herbert Hausmaninger , Walter Selb : Roman private law , Böhlau, Vienna, 1981 (. 9th ed 2001) (Böhlau Study Books) ISBN 3-205-07171-9 , p.373.

[1] Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 22nd

[Selb-2] Herbert Hausmaninger , Walter Selb : Roman private law , Böhlau, Vienna, 1981 (. 9th ed 2001) (Böhlau Study Books) ISBN 3-205-07171-9 , p.373.