Praetors could use special means of praetor defense, which were in direct opposition to claims, since they were orders, not a request, and contained unconditional (up to a certain point) demands to perform or prohibit specific actions.
Interdicts, or restraining orders, were the demand of the praetor to stop the commission of any acts infringing on public order or the legitimate interests of citizens. Initially, before issuing an order, the praetor conducted a careful study of the circumstances, and then issued interdicts. The circumstances were communicated to the praetor by the person who filed the complaint. In fact, the praetor checked the veracity of the information provided and only after their confirmation issued orders that restored the rights of the injured person. The interdict in this case was an indisputable order requiring immediate execution. Since the number of cases grew inexorably, the praetor did not have the opportunity to thoroughly check each complaint, and therefore, the orders issued became conditional and were executed only after confirming the existence of the facts that were stated in the complaint. From the point of view of the process, conditional interdicts became a kind of statements of claim.
Among the interdicts, the first place was occupied by the so-called possessory interdicts, which served to protect property rights.
Types of Interdicts
The types of possessory orders of the praetor include the following:
1) prohibitive- containing a prohibition of certain actions to a specific person or persons;
2) restorative- was the basis for issuing an order to restore the position of the parties to their original state (requirement to stop obstructing the use of lawful property, etc.);
3) demonstrative- was required in the absence of norms regulating the emerging relations;
4) restitution(restitutio in intergum) - similar to a restorative interdict, however, it is more associated with the cancellation or recognition as null and void of unfairly concluded transactions. Restitution canceled the relations that had arisen regarding property if the praetor, examining all the circumstances of the complaint, saw violations. For example, if the party to the transaction was a minor who did not have the right to conclude such transactions, or a person who entered into an agreement on the alienation of his property was forced to do so under duress. The main reason for issuing such orders was to protect citizens, whose inexperience was used by unscrupulous persons, causing significant damage to the former.
Praetor Stipulation- This is a kind of non-documentary agreements drawn up in connection with the issuance of a praetor or court order.
The main reason why such agreements were concluded was the need to support the interests of a certain participant in the dispute, if these interests were not fully protected by other means not prohibited by law.
Roman law provided for three types of praetor stipulations (the first two were judicial, the third extrajudicial):
1) the purpose of the first was the smooth implementation of the process;
2) the second regulated the lawfulness of the proceedings;
3) the third type was concluded by certain persons who have obligations in relation to other persons, in particular, persons responsible for minors due to the absence of parents
Special praetor remedies are remedies that the praetor could use by virtue of his imperium (supreme authority) without trial, and were intended to supplement, improve or eliminate defects in civil procedure or ordinary legal remedies.
These special means included: interdicts, praetor stipulations, introduction into possession, restitution.
Interdicts (interdicta) . Along with the usual claim procedure, there was a special interdiction proceeding. Interdicts are means of extrajudicial protection of private rights. An interdict is a command to do a certain action or to refrain from a certain action.
In ancient times, a magistrate issued an order after investigating a case. And so the interdict was an unconditional order. In developed law, the interdict was of a conditional nature, since the praetor could not be convinced every time of the correctness of the complaint. By means of an interdict, the praetor could also refer the case to the court for examination of the evidence.
The person must immediately obey the interdict. It was possible, without leaving the praetor, to challenge the interdict, demanding the appointment of a judge. In the trial, the interdict was either confirmed, and then from a conditional one it became an unconditional order, or it was not confirmed, which led to the defendant's acquittal.
If a person left the praetor without demanding the appointment of an arbitrator, and did not obey the interdict, the plaintiff called him to conclude an agreement that if the defendant turned out to be wrong, he would pay the plaintiff a fine, the plaintiff also gave the obligation to pay the defendant a fine if he was wrong.
Types of Interdicts.
1. a) prohibitive - by which certain persons were prohibited from doing certain actions,
b) restorative - with the help of which it was ordered to restore the previous state,
c) demonstrative - with the help of which the foundation of new relationships was carried out.
2. interdicts for the retention of possession and interdicts for the restoration of violated possession.
3. interdicts can be simple or double. All restorative and demonstrative interdicts are simple. Forbidding interdicts can be simple or double. By double interdicts, the praetor forbade the change of existing relations to both parties.
Praetor stipulations (prescribedio) - These are verbal agreements concluded by the parties by order of the praetor or judge. The purpose of praetor stipulations is to protect the interests of a party that are not adequately protected by other legal means. There were several types of praetor stipulations: 1. stipulations that served to regulate the correct conduct of the dispute, 2. stipulations that were extrajudicial, which were obliged to be concluded by persons with special obligations, for example, a guardian, 3. stipulations concluded by the parties in order to smoothly conduct the process.
Introduction to possession (missioinpossessionem) . The praetor allowed creditors to establish possession of the debtor's property or individual parts of this property, if the creditors could not otherwise force the debtor to fulfill his obligations. This was especially the case in cases where the debtor was absent, was not an independent person, did not want to appear before the court or refused to provide an appropriate guarantee, and did not voluntarily execute the court decision. The creditor could sell the property, and in some cases keep it.
The introduction into possession could take place in relation to individual things or the entire property of the debtor.
The introduction of possession was applied ex primo (for the first time) or ex secundo decreto (based on the second decree).
For example, if the negligence of the owner created a threat to the neighboring area. According to a complaint about the emergency state of a neighboring building, the owner was forced to give a stipulation, as a result of which a civil liability arose to compensate for possible damage. The refusal to give stipulation was followed by entry into possession. The introduction of ownership created the conditions for the production of repairs and the possibility of deductions and compensation of expenses. But more was intended to exert pressure to obtain a guarantee in the form of a stipu- lation.
If the owner of the land from which the danger emanated continued to refuse to give a stipulation, the taking over followed on the basis of a second decree, as a result of which the neighbor became the praetor owner of the entire plot, and two years later (the acquisitive limitation period for real estate under civil law) acquired its by prescription of possession in full ownership.
Restitution (restitutioinintegrum) . Restitution is the restoration to a previous state. In classical law, this term denoted a special intervention of the magistrate in civil relations, by means of which the magistrate, not by virtue of the law, but on the basis of his discretion (arbitrium), guided by justice, restores the previous state of civil relations. (example - a contract of sale).
Conditions for restitution: 1. damage, 2. legal grounds (iusta causa), 3. timely declaration by the victim.
Damage can be both property and non-property. The legitimate grounds for applying restitution include: if a person under the age of 25 has suffered any damage as a result of his actions; if the transaction was made under the influence of coercion, violence, fear; if the transaction was concluded as a result of a mistake; malicious intent; the absence of the victim.
A timely request for restitution was considered to have been submitted according to classical law within 1 year from the date of discovery of the damage, and according to the law of Justinian, within 4 years.
Classical law did not know the appeal of court decisions in the proper sense of the word. A party dissatisfied with a court decision could ask the praetor for restitution, in accordance with which all the consequences of such a decision were annulled.
As we already know, the creation, transformation and application of formulaic claims were within the competence of praetors, within their area of jurisdiction. However, the praetor had the opportunity to resolve private disputes not only through claims, i.e. judicial investigation of the question of whether the plaintiff has or does not have the relevant right, but also with the help of an administrative order, based on his empire, direct administrative power. Here we will consider two such special means of protecting subjective rights - interdict and restitution (restoration to the previous state).
Interdict (interdictum) is an order of the judicial magistrate cum imperio (praetor or governor of the province), adopted at the request of one of the parties for the speedy consideration of the dispute. The magistrate ordered either to stop the action (for example, construction that interferes with the passage on a public road), or, conversely, to carry out the action (restore the destroyed water supply system, present a certain object, etc.). Thus, it is a direct administrative act, which has often proved to be very effective due to the fact that it was very fast. And the interdict was fast for the following reasons:
Initially, the subjects of interdicts were things of divine right and public things. Over time, this tool was also appreciated in the field of private disputes, especially in relation to property relations. Moreover, thanks to the interdicts in Roman law, the institution of ownership was formed (not to be confused with the institution of property).
The prerequisite for issuing an interdict was a complaint from a private individual; if the praetor recognized it as true, or at least plausible, he issued his order.
The purpose of the interdict is to prevent a change in the actual state and quickly restore order, without going into a detailed study of the question of law at this stage.
Numerius Negidius served as a legionary and was absent for several years. Returning home, he found that his neighbor Avl Agerius erected a fence between their estates. Numerius is sure that the true border does not pass where the fence was erected, that is, Aulus grabbed a piece of land that rightfully belonged to him, Numerius. Without thinking twice and without entering into disputes with a neighbor, Numerius begins to dismantle this fence. Aulus Agerius, in turn, does not agree with this and asks the praetor to ban Numerius from self-governing actions. The praetor issues an interdict, forbidding the use of violence in resolving this dispute, that is, in fact, orders Numerius to stop the actual encroachment on the disputed plot of land. Question: what question will the praetor be interested in in this interdict proceeding - on whose side is the right in this case, who is the legal owner of this lane? Or just about which of the disputants actually owned this land until now?
The interdict was extremely effective when the defendant obeyed it. In this case, the dispute was resolved quickly, unlike the action proceedings. If the defendant was sure that he was right, he could not obey the interdict. In this case, the interdict became only a preliminary remedy, followed by an action, which could be even longer and more complicated than the usual course of the case, when the action was filed without a preliminary interdict stage.
If the defendant refused to obey the order, there were two options for the development of the situation (Gaj., 4. 141). Under the first option, the defendant disputed the interdict directly with the praetor and demanded that a claim formula be drawn up and a judge be appointed to start a dispute over law. He was given such an opportunity and the case took on the character of an action proceeding, while the claim formula had an arbitral character. If the judge found that the right was on the side of the defendant, the interdict did not work against him. If the right of the plaintiff was confirmed, and he won the disputed thing in court, the defendant, in the worst case, was awarded the payment of interest. With such a development of events, it was better for the defendant to obey, because if he persisted even now, the judge additionally sentenced him to a fine, the amount of which in this case was determined by the plaintiff under oath. Such behavior of the defendant was equated to malicious intent. This course of action was called agere per formulam arbitrariam, "to act by means of an arbitral formula."
In the second option, the defendant left the praetor without explicitly challenging his order, but did not obey the order either. The plaintiff in this case caused the defendant to conclude a sponsorship - an agreement in which each of the parties promised to pay a fine if, in the course of further litigation, it loses the case. The amount of the fine was precisely stated in the plaintiff's oath. This course of action is called agere per sponsor. With this option, the party not only lost the case, but also paid a fine.
The general typology of interdicts includes three categories.
Such an interdict was often used to have the testamentary present it to a magistrate or court; anyone interested in the contents of the document could apply to the praetor for such an order, even a slave who suspects that the deceased master set him free in a will, and the heirs conceal this. The command was expressed in words exhibeas eit (earn)- "You must present him (her)." Presentative interdicts differed from restorative ones in that they did not require the defendant to return the thing to the possession or the person to the power of the plaintiff - it was only about their presentation. Both of these types of interdicts were also called decrees, in contrast to interdicta prohibitoria, which were interdicts (literally "prohibitions") in the narrow sense of the word (see: Gaj., 4. 139-140).
The formulas of the interdicts, like the formulas of the claims, were included in the text of the Praetor Edict.
Interdicts have played a very important role in the history of Roman law. In particular, it was thanks to them that the institution of ownership developed, and the reform of inheritance and pledge law was carried out. In the postclassic period, however, the line between interdict and claim gradually blurred.
| Parameter name | Meaning |
| Article subject: | Special means of praetor defense |
| Rubric (thematic category) | Right |
The praetor, having supreme power, had the right to take effective measures without judicial proceedings˸
1) praetor stipulation (stipulationes praetoriae) was expressed in the promise of the praetor to give a subsequent claim in any case (for example, with the owner of a house threatening a neighbor’s buildings due to dilapidation); in case of refusal, he could take possession or resort to fiction;
2) entry into possession (missio in possessionem) - the prevailing method of executing a judgment, which consisted in the fact that the praetor by a special order introduced the winner of the trial into possession of the debtor's property;
3) interdict (interdicta) - a binding order of the praetor to perform a certain action or refrain from performing a certain action. Interdicts assumed protection not against the owner of the thing, but against third parties who encroached on possession, which has a good faith basis. The party, having received the interdict, immediately obeyed it, did not dispute the facts stated in it. The request for an interdict could come from one of the parties; it could be addressed to both the complainant and the violator.
Types of Interdicts˸
Unilateral and bilateral;
Restorative (required the return of a person of some thing) and demonstrative (required the presentation of a person, slave or family member, thing or document);
To own real estate and to own movable things. The interdict on the protection of real estate was aimed at ensuring the real possession of the thing and guaranteeing the person the cessation of extraneous encroachments on ᴇᴦο possession (so that third parties do not plow the ᴇᴦο plot, do not move into the ᴇᴦο house, etc.). The interdict for the protection of movables was aimed at ensuring the interests of the main owner in relation to other random ones (movable things could in reality easily get out of possession˸ gave someone a horse for a day, a slave to carry a burden, etc.). In these cases, disputes were resolved arithmetically, whoever owned the thing for a longer period of time during the year was considered its main owner and the thing was assigned to him;
4) restitution (restitutio in integrum) - restoration to its original position, a method of protection from the application of the rule of law, for example, when a transaction is concluded by a person under 25 years old, when a deadline is missed for good reasons, in case of an error in the process. Restitution invalidated the fact that brought legal relations to the existing position, and restored the former state of these relations. When it was applied against a court decision, it was canceled and the process began again. Restitution was applied as an exception;
5) Publician lawsuit (actio publiciana), based on fiction. The defense consisted in the conditional substitution of real, protected, conscientious possession of a category of property. The praetor introduced a fictitious assumption that the statute of limitations would have expired, and the owner would receive full legal protection from any encroachment on the ᴇᴦο thing. The praetor secured the thing that became the subject of the claim in the property of a bona fide purchaser (in bonis), from which the right that arose on its basis became known as praetor property, or ʼʼbonitary possessionʼʼ.
Special means of praetor protection - concept and types. Classification and features of the category "Special means of praetor protection" 2015, 2017-2018.
The praetor, having supreme power, had the right to take effective measures without trial: 1) praetor stipulation (stipulationes praeto-riae) was expressed in the praetor's promise to give a subsequent claim in any case (for example, with the owner of a house threatening to ... .
administrative nature. The choice still exists. Characteristic features: 1. Fast; 2. Solely; 3. Immediately executed. Weakness: 1. Does not solve the matter on the merits, eliminates the basis. Mostly aids. Characteristic features of the praetor defense: 1....
What are special praetor defenses? In Roman private law, there was such a variety of it as praetor law. This industry gradually developed during the III-I centuries BC.
Its basis was the norms that were developed in the course of the activities of the praetors. This position was one of the most important in the public service with competence relating to the administration of justice in civil cases.
Among others, there were special means of praetor defense in Roman law. They were applied by this magistrate without initiating legal proceedings, and by virtue of the empire - the highest law.
The 5 special praetor defenses are as follows:
As already indicated above, one of the special means of praetor protection is the praetor order, which was subject to immediate and unconditional execution. It provided for the commission of any action or, conversely, the refraining from action. For example, a praetor could order a forced burial or forbid violations of private property.
If a person did not agree with the interdict issued by the magistrate, he had the right, without leaving the residence of the praetor, to challenge it, demanding that a judge be appointed to resolve the dispute.
There were several varieties of interdicts, divided according to various criteria.
So, for example, according to the principle of influence, there were such types of interdicts as:
According to their complexity, interdicts were divided into simple and double.
There was also another type of interdict - possessory, that is, protecting the rights of ownership. Among them were:
The purpose of praetor stipulations - oral agreements made in the presence of a praetor - was to protect interests that were not sufficiently protected by other legal means. For example, in the event of a threat of damage that has not yet been done, when a tree growing on the border of two sites has tilted and may fall.
Then the owner of the plot, under the compulsion of the praetor, gave a stipulation, which entailed liability, providing for compensation for damage if it was caused by the fall of a tree.
The introduction into possession also belonged to the special means of praetor protection. Its essence was as follows. When the creditor could not force the debtor to fulfill his obligation, he turned to the praetor, and he "gave the go-ahead" to the first of them to establish ownership of the property of the second.
This remedy was practiced in situations where the debtor:
The introduction into possession could be carried out both in relation to individual things, and to the entire property of the debtor.
The next type of special means of praetor protection is restitution. Its essence is to return the state of things to its previous state. In order for restitution to be applied, certain conditions must be met. These included:
The legal grounds were:
The filing of a request for restitution was considered timely:
This particular praetor defense was based on a legal fiction. The method of protection consisted in the conditionally applied substitution of the right of good faith possession for the right of ownership.
That is, the praetor, as it were, made the assumption that the limitation period for the right to claim had already expired, as a result of which the owner was provided with full legal protection for his things from any encroachment.
Thus, the thing on which the claim was made was assigned by the praetor to the bona fide purchaser, and the right obtained in this case on a new basis was called “praetor property”, or “bonitary possession”.
Thus the special remedies of the praetor's defense were exercised by this magistrate, by virtue of the power vested in him, without trial, for the purpose of improving, supplementing, or remedying defects in civil procedure or in ordinary legal remedies.
