Chapter

Of Action and Execution: Procedure

DAVID JOHNSTON

in The Roman Law of Trusts

Published in print December 1988 | ISBN: 9780198252160
Published online March 2012 | e-ISBN: 9780191681356 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198252160.003.0007
Of Action and Execution: Procedure

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Trusts were not actionable during the advent of the Republic. Contrary to traditional methods wherein jurisdictions were established within the civil courts' existing structure or within the formulary system, Augustus entrusted this jurisdiction not to the magistrates but instead to the consuls. Once these were already deemed actionable, trusts became subject to common use which led to certain modifications in the jurisdictional scheme that was said to be introduced by Claudius. Such however does not signify the end of the consular jurisdiction since some sources reveal the coexistence of two different jurisdictions during this period. Whether such actions involved how consuls had to deal with cases or how these cases were brought before one of the praetors fideicommissarii, these were perceived to be under a system other than the formulary system. This chapter studies how trusts could have been subject not only to the classical formulary ordo but also to a legal system of procedure. The chapter also examines the procedural consequences attributed to the trusts' legal system.

Keywords: jurisdiction; magistrates; consuls; civil courts; Claudius; formulary system; legal system; procedure

Chapter.  14773 words. 

Subjects: History of Law

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