Legal Definitions - formulary procedure

The formulary procedure was a historical system of legal practice, primarily used in English common law before the 19th century. It dictated that anyone wishing to bring a lawsuit had to strictly adhere to a limited set of pre-defined legal categories, known as "forms of action." Each form had its own specific rules, procedures, and required language. If a person's grievance did not fit perfectly into one of these established forms, or if they chose the wrong form, their case could be dismissed, regardless of the merits of their actual complaint. This often led to complex legal maneuvers and sometimes even "fictions" (pretending certain facts were true) to make a case fit an available form.

Here are some examples illustrating the formulary procedure:

• Imagine a farmer in the 17th century whose neighbor's cattle repeatedly broke through a fence and damaged his crops. Under the formulary procedure, the farmer couldn't simply file a complaint stating "my crops were damaged." He would have to carefully select the correct "form of action," perhaps trespass quare clausum fregit (trespass for breaking the close, meaning entering land without permission). If his lawyer mistakenly filed under a different form, such as trespass de bonis asportatis (trespass for carrying away goods), even though the cattle did damage, the entire case could be thrown out because the chosen form didn't precisely match the nature of the harm (damage to land vs. taking movable goods).

• Consider a merchant who had been defrauded by a supplier who delivered substandard goods. In a modern legal system, the merchant would likely sue for breach of contract or fraud. However, under the formulary procedure, the merchant would need to determine if the situation fit an existing form like assumpsit (a form of action for breach of an undertaking or promise) or deceit (for fraudulent misrepresentation). If the specific details of the fraud didn't perfectly align with the rigid requirements of one of these forms, or if the merchant's lawyer chose a form that was technically incorrect for the specific type of deception, the court might refuse to hear the case, leaving the merchant without a remedy.

• Suppose a person was injured when a poorly constructed building collapsed. Instead of a modern personal injury claim, they would have to fit their situation into a specific form. If the injury was direct and immediate, they might use trespass. If the injury was indirect or consequential, they might use trespass on the case. The distinction between "direct" and "indirect" harm was often very subtle and technical. If the injured party's lawyer misjudged this distinction and filed under the wrong form, the case would fail, not because the injury wasn't real, but because the procedural "form" was not correctly observed.