What are special praetor remedies? In Roman private law, there existed such a variety as praetorian law. This industry gradually developed during the III-I centuries BC.
Its basis was the norms that were developed in the process of praetors. This position was one of the most important in the civil service with competence in the administration of justice in civil matters.
Among others, there were special means of praetor defense in Roman law. They were applied by this magistrate without initiating a trial, and by empire, supreme law.
Special Tools List
5 special means of praetor protection are as follows:
- Interdictions - an order from the praetor to take any action.
- Praetorian stipulations - contracts that are verbally concluded at the direction of the praetor.
- Introduction to the possession of property of the debtor.
- Restitution - a return to its former state.
- Fiction-based lawsuit.
Next, we consider the specific means of praetor protection of private rights in more detail.
Interdict
As mentioned above, one of the special means of praetor defense is interdict. This is a praetorial order, which was subject to immediate and unconditional execution. It provided for the commission of an action or, conversely, abstinence from an action. For example, a praetor could order forced burial or prohibit violating private property limits.
If the person did not agree with the interdict issued by the magistrate, he had the right, without leaving the residence of the praetor, to challenge him, demanding the appointment of a judge to resolve the dispute.
Types of interdict
There were several varieties of interdict, divided by various criteria.
So, for example, according to the principle of influence, there were such types of interdictions as:
- Prohibitive - not allowing certain subjects to commit any actions. For example, prohibition of praetor on the use of violence against a person who reasonably owns property, or on the desecration of sacred places.
- Restorative - with its help an order was issued, on the basis of which a return to the previous state was made.
- Representative - through it the foundations for new relationships were brought.
By their complexity, interdictions were divided into simple and double.
- Simple interdictions took place when the praetor defended the rights of the plaintiff violated by the defendant. For example, given the prohibitive nature of the interdict, the plaintiff requested that the defendant not fish on the banks of the river, which is a public place, which he repeatedly undertook. In addition to the prohibitive interdict, restorative and presentive were also simple.
- Doubles include interdictions, through which the praetor imposed a ban on changing relations that existed at a given time. And this ban concerned both sides of the dispute, the situation of which was the same, neither the plaintiff nor the defendant had any advantages. That is, the prohibitive interdict could be double. The main form of wording in such cases was the following: “Violence is prohibited so that the parties possess as they do now.”
There was another type of interdict - ownership, that is, protecting tenure rights. Among them were:
- Interdictions concerning the retention of ownership of movable and immovable property.
- Interdictions restoring violated tenure.
Praetor Stipulation
The purpose of the praetorian motivation - verbal agreements made in the presence of the praetor - was to protect interests that lacked sufficient protection by other legal means. For example, in the case of a threat of damage not yet done, when a tree growing on the border of two sites has tilted and may fall.
Then, the owner of the site, under compulsion of the praetor, gave a stipulation, which entailed liability providing for compensation for damage if it was caused by a fall of a tree.
Introduction to Ownership
Special means of praetor protection also included possession. Its essence was as follows. When the creditor could not force the debtor to fulfill his duty, 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 tool was practiced in situations where the debtor:
- was absent;
- was not an independent person;
- did not execute the judgment voluntarily;
- did not want to stand trial;
- could not provide a guarantee.
The introduction into possession could be carried out both with respect to certain things, and all the property of the debtor.
Restitution
The next type of special means of praetor protection is restitution. Its essence is to return the state of things to its former state. In order for restitution to be applied, certain conditions must be met. These included:
- Causing damage.
- The presence of legitimate reasons.
- The application of the victim, filed in a timely manner.
The legitimate reasons were:
- The age of the person is less than 25 years. If this person was damaged as a result of acts committed by him or his representatives or their omissions, restitution was carried out. For example, when the property was sold at a very low price, the property was returned to the former owner, and he returned the money to the buyer.
- Transaction involving intimidation or violence.
- Misrepresentation. Restitution in such cases was practiced less frequently than in the previous two.
- The presence of malicious intent in the commission of legally significant actions.
- The impossibility of the presence of the injured person, for example, being held captive.
The request for restitution was considered timely:
- in accordance with classical law - within one year from the moment the damage was discovered;
- in accordance with Justinian law - for 4 years.
Publication lawsuit
This particular praetor defense was based on legal fiction. The method of protection consisted in the conditionally applicable substitution of the right of fair ownership to the right of ownership.
That is, the praetor, as it were, made the assumption that the statute of limitations for the right of claim had already expired, as a result of which the owner was provided with full legal protection for his belongings from any encroachment.
Thus, the thing claimed was secured by the praetor to the bona fide purchaser, and the right obtained in this case on a new basis was called “praetorian property”, or “tenancy”.
Thus, special means of praetor protection were used by this magistrate by virtue of the power given to him without a trial, in order to improve, supplement or eliminate the shortcomings existing in the civil process or in ordinary legal means.