Editorial Committee of the Cambridge Law Journal

Bonae Fidei Iudicia

Author(s): C. C. Turpin
Source: The Cambridge Law Journal, Vol. 23, No. 2 (Nov., 1965), pp. 260-270
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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 BONAE FIDEI IUDICIA

C. C. TURPIN

THE purpose of this article is to discuss problems of the origin and

of the structure of bonae fidei iudicia (foTmulae) and to consider
some of the attempts that have been made to lresolve these prob-
lems. This will necessitate inquiry into the origills of the formulary
system of procedure itself. In the early history of Roman civil
procedure there is much that remains uncertaln or obscure, and
the iIlquirer must often be content with solutions which, on the
evidence, are no more than probable. Yet research contillues to
map out the terrain, and the map is gradually acquiring moxe
reliability as well as more detail.
Tbe opinion has won general acceptance that the formulary
procedure was not introduced de novo by the lex Aebutia,l and
that the formula was in use before the enactment of that law, for
the enforcement of claims founded not upon lex or aIlcient custom
but upon praetorian imperiurn. The pre-Aebutian formula must
have been the product of court practice, but whether the court in
which it was evollred was that of the urban praetor or that of his
colleague qui ius dicit inter peregrinos is unresolved. Hllschke's
view, followed by many,2 was that the praetor peregrinus devised
the formula as a means of bringmg to trial cases iIlvolving pere-
grines, to whom the formal legis actiones were neither available nor
appropriate. In the peregrine jurisdiction also it was necessary for
a foundation for the trial of a case to be laid in preliminary pro-
ceedings in iure, and as certa verba were neither prescribed nor
desirable, it is likely that concepta verba LD some form were
employed to fix the issues, and for the instruction of the recapera-
tores. It is a reasonable inference that a type of oral or written
formula was the mechanism in use in the peregrme court for
the grounding of lawsuits. This, however, does not dispose of
the matter, for the view has beer} persuasively advanced that the
invention of the formula preceded the introduction of a second
praetorship and the establishment of a separate court for peregrines.
Were there not, it is arglled, numbers of foreigners trading in Rome

Usually ascribed to about 120 13.c., but there are arguments in favour of an
earlier date. See L4vy-Bruhl, Recherches sur les Actions de la Loi, pp. 337-
338, and Saser, " Die Les Aebutia," Sttldi in Atemoris di Emilio AZbertario
1, 27, at p. 50.
2 Cf. works cited by Monier, Manuel Eldmentaire de l)roit Romain, 1, 6tb ed.
p. 153, note 2.

260

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 C.L.J. Bonae Fidei Iudicia 261

before 242 B.C. ? Must jurisdictional provision Ilot have been made
for them before that date? It does not, indeed, appear that the
second praetorship was instituted for the sole purpose of the exer-
cise of jurisdiction in c; foreign " cases, or that the new praetor was
invested with a Jurisdictional competellce not prenously possessed
by the single praetor.3 There is every reason to suppose that even
while there was a single praetor he had, in reliance upon his
imperium, extended justice to the stranger within the gate.4
It was not, however, only on the " foreign " side of praetorian
jurisdiction that relief might be sought iIl the praetor's imperi?sm.
Citizens in their domestic disputes may also have looked to the
praetor for the means of brillging to trial matters for which the
ius civile made no provision. In the absence of a legis actio, it
may be that the praetor required an informal oral statemellt of
claim by the plaintiX, and denial by the defendant,5 in terms
appropriate to the circumstances of the case. Such statements
would have served for the instruction of iudez or recuperatores,
and those for the common types of claim would presently acquire
stereotyped patterns. Moreover, where concepta verba were used
in place of certa verba, there was clear need for a written record
of the issue formulated in the oral statements This view of the
origin of the written formula ls in harmony with the very cIose
relationship between the formula and the preceding legis actiones,
which argues an internal or organic procedural development, rather
than the superimposition or borrowing of a novel procedure. It is
not probable that we shall ever know whether the earliest form?4lae
belonged to the " foreign " or to the cc domestic " jurisdiction of
the praetor.
If these early formulae were sanctioned by tmperium and not by
lex, we may yet be sure that the grant or approval of a formula
by the praetor was not an arbitrary matter. In the first place,
where civil law was the basis of the relief sought the plaintiff must
assert his right in the formal way that the civil law prescribed,
uzz., by the forms of the legas actio, for praetorian imperium could
not supplant the prescriptions of the civil Iaw.4 The province of
the imperium, and of the early formulae based upon it was that
3 Cf. D.1.2.2.28; and see Biscardi, JU'RA 2 (19o1), pp. 29S296.
4 Cf. Horvat, 'i Ossenazioni sulla i bona fides ' nel Diritto Romano Obbli-
gatorio," Sttldi in Onore di VincerLzo Atangio-Ruiz, 1, 423, and Sunkel
" Fides als Schopferisches Element im Romischen Schuldreeht,' Festschraft
Koschaker, 2, 1, at p. 12.
5 It is likely, though, that early proceedings betweerk citizens and foreigners
were not contentious but directed to the assessment of what was due on an
undisputed traxlsaction. In this case there would be not claim and deniaI
but a recital of the agreed f&cts and a request for assessment. See Arangio-
Ruis, Cours de Droit Romain ( Les A ctions), p. 35, note 1
6 Cf. Gioffredi, " Ius, Les, Praetor," S.D.E.I., 1S14 (194748) 7, at pp. 114116.

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262 The Cambridge Law Joufrnal
[1965]

unregulated by civil law. Agam, where there was no basis in

ius civile for a claim sought to be enforced, it is reasonable to
suppose and in harmony with later praet.orian actinty, that
the praetor would sanction a formula only if the claim rested uporl
some ground which was held to be a source of obligation ill the
community, Roman or international, for which he was administering
justice.

Such ground it has been shown, was the concept of fides.7 Fides
was a moral, origislally a sacral principle, governing many relation-
ships of Roman social life, such as those of patron and client, and
tutor and pupH, and imposing obligations of true and faithful
conduct. The obligatioIls of fides, supported by religious sanction,
were acknowledged also in the commerce between members of
different commurlities. Fides required conformity with under-
takings, and the view has much to support it that recourse was
had to fides as an extra-legal basis for the enforcement of relations
IlOt admitted by civil law, but in which a tnan had given his word.
Fides required that his word must be kept, that his conduct should
be in exact conformity with it. Thus was generated an obligation
not unlike one arising from the strict civil law and it is likely that
enforcement was assured by a statement of claim tn ture in a form
that was in close relationship with the oral forms of the legis actao.
Ill imitation of the oral " Aio te mihi dare oportere " of the legis
actio in personam a formula was devised which, as we have it in
its settled, written form, expressed a claim Of cc quidquid Nm Nm
An Ao dare facere oportet ez fide bona."
This formula, founded upon imperium and " in fidem con-
cepta" 8 may seem to haare a strong claim to be the IJr-formula of
the new procedure. But it is possible that the fides-formula was
atl innovation for which earlier developments iIl the procedure of
the praetor's court had provided the model. ALraIlgi*Ruiz in 19]2 9
advanced a compelling thesis which finds the origin of the bonae
fidei iudacia and other formulae with a demonstratio in the legis
actio per iodicis postulationem. This for of legis actio was
appropriate inter alia in certain cases in which the parties were in
agreement upon the existence of a legal relationshIp between them,
and desired the appointment of a iudeac or arbzter in order to obtai
a dlstribution or defillition of rights arising from that relationship.
This was so where there had been confessio in iure by the defendant

7 iRurlkel, op. cit., note 4, supta, Saser, Dcts Altromische Ius, pp. 9(K92, 261-
262, 338, Frezzat " Ius Gentium," iRIDA 2 (1949) 259.
8 Cf, ga8er, Do8 Alttomische Ius, p. 293.
9 " IJe Formule con Demonstratio e la loro Origine" Studi EC
dici Unisersitd di Cagliari
Litteratura 11 4, 2(1946)
(1912) 75, reprinted
25. ill Ra

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 judge to make adjl dication of property or an assessment in
Bonae Fidei Iudicia 268
C.L.J.

irl a cl8im for certa re9 or for an incertum, necessitating an aTbi-

trium liti aestimandae or process for assessment, and in the dinsory
actions.l° Arangio-Ruiz surmised that, although the formal prb
ceedings of the legis actio continued to be necessary and constituted
the foundation of the judge's function, it became usual to sum-
marise these proceedings in a written document. Such a document
would contain a recital of the legal relation upon the existence of
which the parties were in agreement, followed by a direction to the

money of the plaintiff's right. This prirnitive formula, then, con-

tained only an initial assertion beginning with qtlod (the later
demonstratio) and an adiudicatio or aestimatio (" iudez aesti-
mato "). Its emergence was wholly within the provmce of the
legis actzo. But as the Republic advanced, the needs of a develop-
ing society and commerce overran the limitations of the legis
actiones, and required new machinery for the settlement of disputes.
If parties were in Ileed of a judge to assess what was due from one
of them (aestimare), the exercise of the praetor's imperium might
be invoked by the accord of the-parties, and a formula derived
from that in use in the arbitrium liti aestimandae would serve for
the instruction of the judge. The formula would contain, however,
not merely a recital of the agreed facts and a direction as to the
judge's task, but a reference to " una norma obiettiva " as founda-
tion of the action, it might be fides bona. In this way, Arangio-
Rli z opil es, were devised the bonae fidei iudicia and other formulae
commencing with a demonstratio. The original formula of, for
example, the actio ez empto, would then have run as follows:
QUOD As As DE No No HOMINEM QUO DE AGITUR
EMIT, QUA DE RE AGITUR, QUIOQUID OB EAM REM
Nm Nm Ao Ao DARE FACERE OPORTET EX FIDE BONA,
IUDEX AESTIMATO.

It would have been an altogether natural development

province of the judge's function, not inconsiderable even
the limits of assessment of what was due, to be enlarged as
went on and to embrace also the question of the existence o
relation afflrmed in the demonstratio. Arangi>Ruiz thollgh
this stage had certainly been reached, for the bonae fidei i
before the lez Aebutia. The aestimatio of the formula w
later replaced by the clause condemnato st non paret absolv
this clause, it seems clear, appeared first in a formula be
with si paret.

° It iB not indeed certairl, though it is likely, that tbe arbitrium liti aestimandae
took the form of the Zegis actio per iudicis postulatio?^em. Cf. Arsngio-Ruis
Istituzioni di Diritto Romano, 14th ed., p. 117. note 2.

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 264 The Cambridge Law Jowrnal [1965]

In the genesis of the bonae fidei iudicia, it is commonly helds

the commerce with peregrilles played a significant role.l1 This is
a factor of which the importance must be recognised but should
not be exaggerated. There is no reason to seek in this commerce
the origiIl of contracts of letting and for the engagemellt of serarices,
assembled in the Classical contract of locatio conductio and sanc-
tioned by bonae fidei iudicia,12 although the development of the
ce)ntract of sale and of business partnerships must at all events
have been stimulated by the trade with peregrines. There were,
moreover, among the bonae fidei zudicia of Classical Roman Law,
some of which the origin cannot be ascribed to the trafflc with
peregrines, among them the actio tutelae and actio mandati.l3
Wieacker has recently challenged the view that fides was
originally invoked in the bonae fidei iqxdicia as a ground l)f obliga-
tion in relations hanng no basis in iz4s.l4 Before the invention of
the bonae fidei iudicux there were institutioIls which, rooted ill fides
as a sacral or moral and extra-legal principle of obligation, had been
incorporated into ius. These included tutela, fidt4cia, the primitive
societas, perhaps also mandate and dos.l5 VWrieackerss argument is
that as these relations had already won acceptance by the ius civile
and were sanctioned by civil actions (legis actiones), the praetor
in creating bonae fidei iudicia for them was not providin8 the means
of making them actionable. Rather his object was to modernise
the existillg remedies. Bona fides was invoked itl the ormula,
not as source of obligation, but in order to enlarge the discretion
ca' the tudez m arriYing at his judgment.lo Wieacker contends that
the reference to fides in the bonae fidei iudzeia of the three con-
sensual contracts of sale, hire and partnershlp, had also this function
of conferring greater freedom upon the judge, rather than that of
providing a basis for actionability which was wanting in ius civile.
He holds that there was no need to invoke fides expressly in order
to make these contracts actionables as is shown by the circumstance
that tbe praetor illtroduced other remedies (e.g., actio Serriana,
actio Publictana) of whlch bona fides and avoidance of dolus were
the ethical justification, but S which no express reference to fides
was found necessary. For Wieacker, the invention of the bonae
fidei iudicium was essentially a procedural reforms accomplished

e.g., iFrezza, op. cit., note 7, sapta, at pp. 279-280- Kaser Bomische Recht°
sgeschichte, p. 118, :Eiunkel, op. cit., note 4, suprlz, at p. 8.
12 Cf. Wieacker, " Zum tTrsprung der Botlae Fidei Iudicia tl ,ZSS 80 (1963)
1, at p. 12, })aBert Das Alttomische Itls, p. 297.
1B Cf. Easer, lVa8 Altromische Ius, pp. 29S298.
4 Op. cit., note 12, s2zpra.
5 See Wieacker, op. cit., pp. 2M1; Kaser, Das Aatrdmische [usfi pp. bS298.
6 German junsts distingaish between Ver?flichtungsgrundlage fLnd
Ermessensmasstab.

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C;L.J. Bonae Fidei ludtciow
265

probably in the second half of the second century B.C., and the
object of the reform was the enlargement of the oaicium iudicis so
as to make possible a freer determination of the amount of the
condemllation, especially desirable where there had to be a settle-
ment of accounts (tutela, societas), or the calculation of pecuniary
loss (sale, lease).
Wieacker's thesis, to which the above brief account does not do
justice, is open to a number of objections. Wieacker islsists, and
it is important to his argument, that the bonae fidei iadicia were
all created at about the same time, probably in the later second
century. But this is quite doubtful. The orlgin of the consensual
contracts is obscure, but is attributed by some writers to the third
century s.c.l7 There is reason to assign the actio fiduciae to the
third century B.C., perhaps to the earlier part of that century.l8
All that can safely be said of the actio tutelae is that it was kllown
to QuiIltus Mllcius ScaevolaS consul in 95 s.c.lo
One must agree in general with Wieacker in his contexltion that
the ex fide bona formulary clause could not have provided the basis
of actionability for the old fides-relations of the ius civile. Yet even
here the introduction of the bo nae fidei iudicium might be not
merely a procedural reform, improlring upon the restrictive legts
actio, but the admission of a remedy with a different provillce
from that of the action previously available. Thus the actio tutelae
was not merely a modernised form of the older actio rationibus
distrahendis, but a quite new remedy, applying to a different kind
of tutela, and giving a different kind of relief.2s The actio ratzoni-
bus distrahendis contmued to be available ill its proper sphere.
ID the case of fiducia, it may be that there wvas no remedy by
legis actio before the appearance of the bonae fidei action.2t
Wieacker's thesis seems also to exaggerate the freedom of the
praetor to create new remedies where there was no close analogy in
ius civile which could be easily adapted in a new formula, e.g., by
fiction (ctio P?4bliciana) or by transposition of names. Even the
bold-seeming formulae in factum conceptae generally rest securel.y

7 See Runkel, op. cit., note 4, supra, pp. 1K13; lIorvat, op. cit., note 4, supra
p. 442; Easer, L)as Altromische Ius, pp. 29S298.
18 Cf. Saser, " Die Anfange der Manumissio und das Fiduziarisch Gebundene
Eigentum," ZSS 61 (l941) 153 at pp. 18W184..
9 Cicero. De O«cits, 3.17.70.
20 The actio tutelae applied origirlally to tutela datisa, and was brought at the
end of the guardianship for the rendering of an account of the aaministration.
The earlier remedies applied to the older forms of tutela, and probably
terminated the esercise of the guardianship. See Tal&manca, IJabeo 6 (1960)
p. 982.
21 Ea8er, Das Altromische Ius, pp. 29K294.

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 266 The Cambridge Law Journal [19653

upon well recogIlised grounds of liability, such as dolus malus.2

That the praetor might by virtue of zmperium authorise a formula
asserting, without fiction or like device, an unsupported oportere,
is extremely improbable. The sctio Publiciana and actio Serviana
pronde no evidence for the existence of such a power.
If Wieacker's view is not accepted, wve are left still with the
problem of reconciling the two types of bonae fidei it4dicium,
undifferentiated in structure: those in which fides was originally
invoked as the ground of obligatioIl, and those in which it was,
from the first only the measure of the judge's discretion. This is,
however, to some extent a false dichotomy. Even where bona
fides was the basis of liability, it must in some measllre have
governed also the exercise of the judicial flvaction. In a claim for
an incertum, the determination of the questiorl whether the defen-
dant was liable to the plaintiff would not easily be separated from
the ascertainment of the amount due and if fides controlled the
former matter, it would not be without influence upon the latter.
The account of the development of the bonae fidei iudicia which
appears to accord best with the hown facts is the following. The
earliest bonae fidei iudicia, such as those of the consensual con-
tracts of sale, hire and the " modern " partnership, were allowed
by the Jurisdictional magistrate by virtue of his impe7ium, but in
reliance upon the principle of fides, and it may be also at first
upon the accord of the parties as to the existence of the transaction
giving rise to the ac$ion. Fides was appealed to as the foundation
of the liability: it was a familiar principle of moral and also of
legal obligation, and was deemed a suflicient basis for the oportere
of the formulav As fides furnished the ground (3f obligation it was
expressed in that part of the formula in which the obligation svas
asserted (tntentio), and qualified the oportere.28
In the practice of the courts, and in the doctrirle of the jurists,
the ez fide bona clause of the formula came to be acknowledged
also as the measure of the iudge's discretion in arriving at the con-
demIlation*X4 It was held that in deterrnining the amount that was
due e;r fide bona, the iedez was directed to a full investigation of
the cwcumstances of the case, and the wide scope of his discretion
22 Cf. Pbiloxmenko, 4' ' Intentio ' dans les Formules ' in Factum Conceptae,' "
RIDA 3 (1949) 231
23 Cf. thx3 formula in bonurrw et aequum. ooncepta. Wisacker, it iB suggeste
dismisses too lightly the significatlce of this point: Op. cit., noto 12, supr
p. 35 note 117. The oportete e: fde bona of the inte71tio embraced rlot on
a dare but also a facere. The condemnation, however, was always to pay
dare. ThiB 8EemB to show that fides waB once the foundation of the liabilit
(it might be to give or to do something), and only secondarily the measure of
the condemnation. . . .
24 See on this development Honat, op. cit., n
note 7, supra.

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 Bonae Fidei Iudicia
267
C.L.J.

stimulated the growth of a rich jurisprudenceX The efficiency of

this formula made it an appropriate tnodel for other claims for an
incertum, in which the iudez must detere the amount of preju-
dice suffered, or the amount of the plaintiff's ;nterest. It was
especially appropriate for a remedy like the actio tutelae, where
the legal relation for which the action was wanted had a historical
basis in fides. But it was appropriate also for the new remedies
that were wanted for the contracts of depositum and commodatum.
The actions in factum by which tliese had first been sanctioned
gave a narrowly limited protection to depositor or commodator,
covering only fraudulent failure to restore the res. Bonae fidei
formt4lae were certainly available on depositum,25 and probably
also on commodatum,26 in Classical Law, in addition to the formulae
in yactum conceptae. It is likely that there was a bonae fidei
iudicium also for pignus.27
The bonae fidei iudicia, on this view of their history, were aIl
origiIlally iudicia honoraria, founded upcxn imperium (iudicia
tmperio continentia), as opposed to jormulae introduced in conse-
quence of lez (iadicia legitima). In Classical Law, however, the
bonae fidei iadicia, if they satisfied certaitl conditions,28 were iudicia
legttima. This change had probably been brought about either by
thsc lez Aebutia or by the leges Iuliae, in regulatiIlg all proceedings
at Rome between citizens leading to trial before a iudez ?unuss
includmg both actiones honorariae and those derived from lex. It
is an open question, which of tbese leges it was that sanctioned the
general use of the formula, both for claims previously maintained
by legis actio and those founded upon tmperium. This reform is
usually attributed to the lez Aebutia, but some Romanists have
from time to time assigned a more limited tole to this lez. A strong
attack upon the prevailing doctrine was launched by Kaser in
1953,29 maintaining that the evidence established that the tez
Aebutta authorised the foTmula only for claims previously enforce-
able by the legis actio per condictionem, and that the legis actio
procedure contitlued to be the " legitimate " procedure for other
claims founded upon ius civile. If this new is colTect,80 it
would seem to follow that it was only by the leges Iuliae, in giviilg

25 G.4.47.
26 See Lenel, Das Edictum Perpetuum, 3rd ed., p. 253; Schulz, Classical Roman
Law, p. 513.
27 Lenel, op. cit., p. 255; Schwarz, " Die Sontrarklagerl," ZS8 71 (1954) 111,
at p. 206.
28 G.4.104
29 Op. cit., note 1, supra.
80 It is not proposed to consider :Easer's arguments here. Although they are of
varying weight, the case presented is a formidable one, and has won quite
wide acceptance

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 268 The Cambridge Law Joutrnal [1965]

general statutory sanction to the formula, that the bonae fi

iu.dicia were recognised as iadicia legitima.
The relations enforced by bonae fidei iudicia were, in the Class
cal Law, recognised as belonging to ius civile and not to ius hono
arium, irrespective of their origin in ius or in imperium. It is n
clear in what way this transformation (of those founded up
tmperium) had come about, but at all events it is an intelligi
development. Their comparative antiqliity, their basis of Rom
fides, and the presence in their jormulae of oportere, a term lon
associated with civil law obligation, would have facilitated t
reception by jurisprudellce of these relations as institutions of t
ius cisile. This reception was probably acconlplished by jurists
the late Republic.3l In Classical Lasv the intentiorzes of aAl bonae
fidei iudicia were held to be in ius conceptae.
The structure of the bonae fidei iudicia, arld also of othe
formulae of actions in personam with a demonstratio, presents som
awkward features for which the explanation must be sought ill t
historical development of these formulae. The demonstratio with
which they begs appears to assert incontestable facts, that a s
has been concluded, for example, or that the parties are join
cxwners and have asked for a iudenc to make n divisionv That th
is iIldeed an incontestable statement in every case, appears to
refuted by the si non paret absolvito of the condemnatio. Again,
this si non paret i8 Ilot balanced by a si paret in the body of the
formula, as it is, for example, in the condictio certae pecuniae.
Tbese anomalies are explamed if Arangi>Rliiz' thesis of th
origin of the ormula with demonstratio, which has been considere
above, is accepted. This thesis, it is important to emphasise,
relates to the origin and early development of the formula with
demonstratio, and its propositions do not necessarily apply to th
mature formulary system. Arangi>Ruiz was not of the opinio
that the untraversable quality of the demonstratio survived in th
developed law.32

In a recent article in this Journal,$3 Ashton-Cross argued that

the demonstratio of the Classical forrnula necessarily contained a
statement of facts admitted by the defendant, and that an alterna
tive formula in factum concepta was arrailable and appropriat
when the transaction alleged by the plaintiff was disputed by th
defendant. But the evidence for this view is, it is suggested, uncon
vincing, and there are cogent reasons for rejecting it.

81 Magdelain, Les A&tio77s Civiles, p. 54 et seq., assignsJ it to the early Principate

Cf. Pugliese, S.D.E.I. 20 (1954) 373, at pp. 381482.
82 Thi8 is the arlgwer to the criticisms of Soschaker, ZSS 34 (1913) 433. Se
Arangio-Ruiz, op. cit., note 10, supra, p. 122, note 1.
88 " DemonstTatio " [1960] C.L.J. 81.

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 C.L.J.
r Borlae Fidei Zudicia 269

Opposed to it, m the first place, is what Gaius tells us of over-

statement in this part of the formula. If the demonstratio con-
tained an afflrmation of somethixlg more than the truth (plus
demonstrare), then the real circumstances were not brought into
issue: nihil in iudicium deducitur.84 The plaintiff's action would
fail, but, except perhaps in infaming actions,85 there was no obstacle
t(3 its renewal on another occasion. If, however, the demonstratio
had been a recital of agreed facts, the question of overstatement
ill this part of the formuls would not have arisen at all. It would
have been the duty of the iuderr to determine what was due on the
assumption of t}}e truth of the demonstratio, and this assumption
would not have been open to challenge by the defendant. It is of
course true that the content of the demonstratio must be accepted
b) the defendant, together with the rest of the formula, for litis
contestatzo to take place; but this acceptance was not an admission
of the truth of allegations in the formula, but rather an acceptance
of the formula as colTectly delimiting the issues to be tried by the
iudez. The doctrine of overstatement in the demonstratio puts it
beyond doubt that the content of this part of the formula was, at
a11 events in the time of Gaius, subject to investigation and
verification by the i?dez.
Ashton-Cross' view requires the existence of an alternative for-
mula in factum concepta for every formula with a demonstratio
contsining an affirmation that the defendant might wish to chal-
lenge.86 This is well endenced only for the actio depositi, the actzo
commodati, and the actio negotiotum gestorum.37 In other cases,
while evidence exists for a formula with a demonstratio, none exists
for an alternative formula in factum without one. This is true of
the actions OI1 sale, hire, partnership and mandate. There is no
evidence of an alternative formula without a demonstratio for the
actxo tnxurzarom.
Ashton-Cross emphasises the difference in function between
demonstratio and intentio. There is some risk of etTor in over-
emphasis of the separate functions of different parts of the formula.
The identification and naming of the partes formularum was the
work of theoretical jurisprudence and was accomplished after
the development and stabilisation of the formulae themselves. The
language of the foTmulae had some roots in the ancient forms of the

84 G.4.58
as o.4.60.
86 [1960] C.L.J. at pp. 8.
87 The existence of an actio in factum for neyotiorum gestio i8 dis
Magdelain, Le Consensualisme dans I'Edit du Pt#teur, pp. 181-195.

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tioll of particular formulae 58 ght be decis-ive. It has been
The Cambridge Law Jowrnal [1965]
270

legis actiones, and was the product of court practice and the inven-
tiveness of lawyers. The " necessities of the grammatical formula-

shown that this graxnmatical factor, ratber than any essentisl dif-
ference ill function, grounds the distinction between praescriptio
and demonstratio,39 and that a like function of delimiting the issues
to be illeluded in the litis contestatio and resolved by the iudez
was fulfilled by the intentio in tactum concepta.4°
The explanation of the contrad}ctory form of the formula with
demonstratia, if it does 1lot reside in the original limited function
ol form2llae of this type suggested by Arangio-Ruiz, may perhaps
be found ill the link between the written formula and earlier devel-
owvments m the praetor's court. When new claims were first admit-
ted by the praetor in the exercise of his imperium, it may be that
there were an oral affirmation and denial by plaintiff and defendant
such as took place in formal words ill the legis actiones. When
these proceedings were translated into a written formula, this
would have embodied the substance of the plaintiS's assertion, and
may have preserved the declaratory form m which it was expressed,
although there was some illogicality in this in a formula which was
meant to submit this assertion to examination by the iadez.4

a8 Koschaker, Z88 41 (1920) 8S4, at p. 8S8.

89 Koschaker, op. cit.; Wlassak, " Praescriptio und l3edingter Prozess, ' ZSS 83
(1912) 81, at pp. 87-98.
4° Wlassak, oph cit. p. 104, note l.
41 Cf. the illuminat;ng remarks of Daube, Fotmw of Boman I,egwlation, p. 35.

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