Claim in a civil proceeding Ancient Rome

The author points out that the lawsuit, as a legal institution, has an extremely long history. Like most civil institutions, its origins are connected with the law of Ancient Rome. The article is devoted to the analysis of the institution of the claim in the law of Ancient Rome. It is argued that subjective material rights were perceived by Roman legislators, court officials and lawyers not from the point of view of their material content, but the ways of protecting these rights. Claims were not derived from subjective material rights, but, on the contrary, they could confirm their existence. Subjective material rights and their judicial implementation were considered as one whole, preventing the Romans from dividing the law into material and procedural law. It is indicated that the lawsuit did not act as a universal procedural tool that protected against all possible civil offenses. Roman law developed as a system of actions that provided protection in a situation where the few laws in the field of civil law were outdated and could not effectively provide protection to the individual. The peculiarity of the claim within three forms of civil process of Ancient Rome is revealed: legislative, formulary and extraordinary. In the period of the legislative civil process, the claim had to be presented to the court in such a way that it repeated the verbal norm of the law, which the person referred to in his case, otherwise he lost it. Quite often, the verbal voicing of one’s claims had to be accompanied by certain gestures literally to the norm of the law. At the time of the formal civil process, the plaintiff presented the claim to the court also orally, but without observing the claim formalism, which made it difficult to access the court. At that time, the praetors began to record the claim in writing in a special act-instructions, where the judge was given instructions on how to resolve the case. With the help of these acts, praetors could protect social relations not regulated by custom or law. The extraordinary civil process brought the institution of the lawsuit closer to its modern understanding: an oral, and then a written claim by the plaintiff to the defendant, which must be decided by the court. The lawsuit was considered as a posed question, to which the court decision should give an answer.