Actio

In civil law

A specific mode of enforcing a right before the courts of law, e. g., legis actio; actio sacramenti. In this sense we speak of actions in our law, e. g., the action of debt. The right to a remedy, thus: Ex nudo pacto non oritur actio, no right of action can arise upon a naked pact. In this sense we rarely use the word "action."

3 Ortolan, Inst. § 1830; 5 Savigny, System, 10; Mackeld. Civ. Law (13th Ed.) § 193.

The first sense here given is the older one. Justinian, following Celsus, gives the well-known definition: Actio nihil aliud est, quam jus persequendi in judicio, quod sibi debetur, which may be thus rendered: An action is simply the right to enforce one's demand in a court of law.

Inst. 4. 6, "De Actionibus."

See "Action." Divisions: According to Nature. In the sense of a specific form of remedy, there are various divisions of actiones. Actiones civiles are those forms of remedies which were established under the rigid and inflexible system of the civil law, the jus civile. Actiones honorariae are those which were gradually introduced by the praetors and aediles, by virtue of their equitable powers, in order to prevent the failure of justice which too often resulted from the employment of the actiones civiles. These were found so beneficial in practice that they eventually supplanted the old remedies, of which, in the time of Justinian, hardly a trace remained.

Mackeld. Civ. Law, § 194; 5 Savigny, System.

Directae actiones, as a class, were forms of remedies for cases clearly defined and recognized as actionable by the law. Utiles actiones were remedies granted by the magistrate in cases to which no actio directa was applicable. They were framed for the special occasion, by analogy to the existing form, and were generally fictitious; that is, they proceeded upon the assumption that a state of things existed which would have entitled the party to an actio directa, and the cause was tried upon this assumption, which the other party was not allowed to dispute.

5 Savigny, System, § 215.

According to Subject-Matter. Again there are actiones in personam and actiones in rem. The former class includes all remedies for the breach of an obligation, and are considered to be directed against the person of the wrongdoer. The second class comprehends all remedies devised for the recovery of property, or to settle questions of right between the parties, and are therefore considered as rather aimed at the thing in dispute than at the person of the defendant.

Mackeld. Civ. Law, § 195; 5 Savigny, System, §§ 206-209; 3 Ortolan, Inst. § 1952 et seq.

According to Object.

— In respect to their object, actions are either (a) actiones rei persequendae causa comparatae, for the recovery of property or damages, to which class belong all actiones in rem, and those of the actiones in personam, which were directed merely to the recovery of the value of a thing, or compensation for an injury;

— or (b) actiones poenales (called, also, actiones ex delicto), in which a penalty was recovered of the delinquent;

— or (c) actiones mixtae, in which were recovered both the actual damages and a penalty in addition.

Actiones poenales and actiones mixtae comprehended cases of injuries for which the civil law permitted redress by private action, but which modern civilization universally regards as crimes; that is, offenses against society at large, and punished by proceedings in the name of the state alone. Thus, theft, receiving stolen goods, robbery, malicious mischief, and the murder or negligent homicide of a slave (in which case an injury to property was involved), gave rise to private actions for damages against the delinquent.

Inst. 4. 1.

De obligationibus quae ex delicto nascuntur.

Id. 2.

De bonis vi raptis. Id. 3, De lege aquilia. And see Mackeld.

Civ. Law, § 196, 5 Savigny, System, §§ 210-212.

According to Procedure. In respect to the mode of procedure, actiones in personam are divided into stricti juris, and bonae fidei actiones. In the former, the court was confined to the strict letter of the law, in the latter, something was left to the discretion of the judge, who was governed in his decision by considerations of what ought to be expected from an honest man under circumstances similar to those of the plaintiff or defendant.

Mackeld. Civ. Law, § 197a.

Besides this classification, the different actions had specific names, the principal of which follow.