Condemnatio Pecuniaria and Enforcement of Specific Performance in Roman Civil Procedure

Abstract

This article examines the enforceability of specific performance in classical Roman civil procedure. The (ordinary) formulary procedure is governed by the principle of monetary condemnation (condemnatio pecuniaria). Where claims are not directed at the payment of money, only a monetary equivalent can be obtained. This stands in contrast to the (extraordinary) cognitio procedure, which permits the direct enforcement of specific performance.
The consequences of monetary condemnation are particularly evident in lawsuits concerning the recovery of the claimant's property. The plaintiff receives only monetary compensation, while the disputed object remains with the condemned defendant. This outcome is treated as a purchase, thereby enabling the defendant to acquire ownership.
Even within the formulary procedure, however, there are prospects for specific enforcement. In the case of the actiones arbitrariae, a special procedure is designed specifically to bring about specific performance. The pressure to comply is regularly reinforced by the risk of a potentially excessive valuation resulting from the iusiurandum in litem, through which the claimant may determine the condemnation sum. Moreover, from a non-financial perspective, the adverse effects of a condemnation on a person's civic honour (infamy) appear capable of encouraging defendants to seek to avoid judgment and thereby indirectly compelling specific performance.