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Towards a New Hypothesis of the \u27Legio Actio Sacramento in Rem\u27

By Alan Watson


According to Gaius, the form of the \u27legis actio sacramento in rem\u27 was as follows: A. Hunc ego hominem ex iure quiritium meum esse aio secundum suam causam. Sicut dixi, ecce tibi vindictam imposui. (As he said this he \u27festucam imponebat\u27). B. (Eadem dicebat e faciebat). Praetor. Mittite ambo hominem. A. Postulo anne dicas qua ex causa vindicaveris. B. Ius feci, sicut vindictam imposui. A. Quando tu iniuria vindicavisti, quingenario (or \u27quinquagenario\u27) sacramento te provoco. B. Et ego te. A \u26 B to the witnesses. Testes estote. It is, I think, universally accepted first that both parties to the action were put on a level, that the right and title of both of them was in issue and that it was not enough for the defendant to base his case on the weakness of the plaintiff\u27s claim, and secondly that in the schema as set out above, A represents the plaintiff, i.e., the one who did not have control of the slave (or other thing claimed) before the start of the actio, B the defendant. I should like to suggest that a different hypothesis for the \u27legis actio\u27, in which both these opinions are false, is possible and more satisfactory

Topics: Roman law, Legal History
Publisher: Digital Commons @ Georgia Law
Year: 1967
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