|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Introduction of the Case » The introductory libellus of litigation
|A judge cannot investigate any case unless a plea, drawn up in accordance with canon law, is submitted either by a person whose interest is involved, or by the promotor of justice.
|A person who wishes to sue another must present a petition to a judge who is lawfully competent. In this petition the matter in dispute is to be set out and the intervention of the judge requested.
|§1 A judge can admit an oral plea whenever the plaintiff is impeded from presenting a petition or when the case can be easily investigated and is of minor significance.
§2 In both cases, however, the judge is to direct a notary to record the matter in writing. This written record is to be read to, and approved by, the plaintiff, and it takes the place of a petition written by the plaintiff as far as all effects of law are concerned.
|The petition by which a suit is introduced must:
1° state the judge before whom the case is being introduced, what is being sought and from whom it is being sought;
2° indicate on what right the plaintiff bases the case and, at least in general terms, the facts and evidence to be submitted in support of the allegations made;
3° be signed by the plaintiff or the plaintiff’s procurator, and bear the day, the month and the year, as well as the address at which the plaintiff or the procurator resides, or at which they say they reside for the purpose of receiving the acts;
4° indicate the domicile or quasi-domicile of the respondent.
|§1 Once he has satisfied himself that the matter is within his competence and the plaintiff has the right to stand before the court, the sole judge, or the presiding judge of a collegiate tribunal, must as soon as possible by his decree either admit or reject the petition.
§2 A petition can be rejected only if:
1° the judge or the tribunal is not legally competent;
2° it is established beyond doubt that the plaintiff lacks the right to stand before the court;
3° the provisions of can. 1504 nn. 1-3 have not been observed
4° it is certainly clear from the petition that the plea lacks any foundation, and that there is no possibility that a foundation will emerge from a process.
§3 If a petition has been rejected by reason of defects which can be corrected, the plaintiff can draw up a new petition correctly and present it again to the same judge.
§4 A party is always entitled, within ten canonical days, to have recourse, based upon stated reasons, against the rejection of a petition. This recourse is to be made either to the tribunal of appeal or, if the petition was rejected by the presiding judge, to the collegiate tribunal. A question of rejection is to be determined with maximum expedition.
|If within a month of the presentation of a petition, the judge has not issued a decree admitting or rejecting it in accordance with can. 1505, the interested party can insist that the judge perform his duty. If, notwithstanding this, the judge does not respond within ten days of the party’s request, the petition is to be taken as having been admitted.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Introduction of the Case » The citation and notification of judicial acts
|§1 In the decree by which a plaintiff’s petition is admitted, the judge or the presiding judge must call or summon the other parties to court to effect the joinder of the issue; he must prescribe whether, in order to agree the point at issue, they are to reply in writing or to appear before him. If, from their written replies, he perceives the need to convene the parties, he can determine this by a new decree.
§2 If a petition is deemed admitted in accordance with the provisions of can. 1506, the decree of summons to the trial must be issued within twenty days of the request of which that canon speaks.
§3 If the litigants in fact present themselves before the judge to pursue the case, there is no need for a summons; the notary, however, is to record in the acts that the parties were present at the trial.
|§1 The decree of summons to the trial must be notified at once to the respondent, and at the same time to any others who are obliged to appear.
§2 The petition introducing the suit is to be attached to the summons, unless for grave reasons the judge considers that the petition is not to be communicated to the other party before he or she gives evidence.
§3 If a suit is brought against a person who does not have the free exercise of personal rights, or the free administration of the matters in dispute, the summons is to be notified to, as the case may be, the guardian, the curator, the special procurator, or the one who according to law is obliged to undertake legal proceedings in the name of such a person.
|§1 With due regard to the norms laid down by particular law, the notification of summonses, decrees, judgements and other judicial acts is to be done by means of the public postal service, or by some other particularly secure means.
§2 The fact and the manner of notification must be shown in the acts.
|A respondent who refuses to accept a document of summons, or who circumvents the delivery of a summons, is to be regarded as lawfully summoned.
|Without prejudice to the provision of can. 1507 §3, if a summons has not been lawfully communicated, the acts of the process are null.
|Once a summons has been lawfully communicated, or the parties have presented themselves before a judge to pursue the case:
1° the matter ceases to be a neutral one;
2° the case becomes that of the judge or of the tribunal, in other respects lawfully competent, before whom the action was brought;
3° the jurisdiction of a delegated judge is established in such a way that it does not lapse on the expiry of the authority of the person who delegated;
4° prescription is interrupted, unless otherwise provided;
5° the suit begins to be a pending one, and therefore the principle immediately applies ‘while a suit is pending, no new element is to be introduced’.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Joinder of the Issue
|§1 The joinder of the issue occurs when the terms of the controversy, as derived from the pleas and the replies of the parties, are determined by a decree of the judge.
§2 The pleas and the replies of the parties may be expressed not only in the petition introducing the suit, but also either in the response to the summons, or in statements made orally before the judge. In more difficult cases, however, the parties are to be convened by the judge, so as to agree the question or questions to which the judgement must respond.
§3 The decree of the judge is to be notified to the parties. Unless they have already agreed on the terms, they may within ten days have recourse to the same judge to request that the decree be altered. This question, however, is to be decided with maximum expedition by a decree of the judge.
|Once determined, the terms of the controversy cannot validly be altered except by a new decree, issued for a grave reason, at the request of the party, and after the other parties have been consulted and their observations considered.
|Once the joinder of the issue has occurred, the possessor of another’s property ceases to be in good faith. If, therefore, the judgement is that he or she return the property, the possessor must return also any profits accruing from the date of the joinder, and must compensate for damages.
|Once the joinder of the issue has occurred, the judge is to prescribe an appropriate time within which the parties are to present and to complete the evidence.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Trial of the Litigation
|The trial of the issue is initiated by the summons. It is concluded not only by the pronouncement of the definitive judgement, but also by other means determined by law.
|If a litigant dies, or undergoes a change in status, or ceases from the office in virtue of which he or she was acting:
1° if the case has not yet been concluded, the trial is suspended until the heir of the deceased, or the successor, or a person whose interest is involved, resumes the suit
2° if the case has been concluded, the judge must proceed to theremaining steps of the case, having first summoned the procurator, if there is one, or else the heir or the successor of the deceased.
|§1 If the guardian or the curator or the procurator required in accordance with cann. 1481 §§1 and 3, ceases from office, the trial is suspended for the time being.
§2 However, the judge is to appoint another guardian or curator as soon as possible.
He can appoint a procurator ad litem if the party has neglected to do so within the brief time prescribed by the judge himself.
|If over a period of six months, no procedural act is performed by the parties, and they have not been impeded from doing so, the trial is abated. Particular law may prescribe other time limits for abatement.
|Abatement takes effect by virtue of the law itself, and it is effective against everyone, even minors and those equivalent to minors; moreover, it must be declared even ex officio. This, however, is without prejudice to the right to claim compensation against those guardians, curators, administrators and procurators who have not proved that they were without fault.
|Abatement extinguishes the acts of the process, but not the acts of the case. The acts of the case may indeed be employed in another instance, provided the case is between the same persons and about the same matter. As far as those outside the case are concerned, however these acts have no standing other than as documents.
[NB see Authentic Interpretation of canons 1522 and 1525, 17.V.1986]
|When a trial has been abated, the litigants are to bear the expenses which each has incurred.
|§1 The plaintiff may renounce a trial at any stage or at any grade.
Likewise, both the plaintiff and the respondent may renounce the acts of the process either in whole or only in part.
§2 To renounce the trial of an issue, guardians and administrators of juridical persons must have the advice or the consent of those whose agreement is required to conduct negotiations which exceed the limits of ordinary administration.
§3 To be valid, a renunciation must be in writing, and must be signed either by the party, or by a procurator who has been given a special mandate for this purpose; it must be communicated to the other party, who must accept or at least not oppose it; and it must be admitted by the judge.
|Once a renunciation has been admitted by the judge, it has the same effects for the acts which have been renounced as has an abatement of the trial.
Likewise, it obliges the person renouncing to pay the expenses of those acts which have been renounced.
[NB see Authentic Interpretation of canons 1522 and 1525, 17.V.1986]
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs
|§1 The onus of proof rests upon the person who makes an allegation.
§2 The following matters do not require proof:
1° matters which are presumed by the law itself;
2° facts alleged by one of the litigants and admitted by the other, unless their proof is nevertheless required either by law or by the judge.
|§1 Any type of proof which seems useful for the investigation of the case and is lawful, may be admitted.
§2 If a party submits that proof, which has been rejected by the judge, should be admitted, the judge is to determine the matter with maximum expedition.
|If a party or a witness refuses to testify before the judge, that person may lawfully be heard by another, even a lay person, appointed by the judge, or asked to make a declaration either before a public notary or in any other lawful manner.
|Unless there is a grave reason, the judge is not to proceed to collect the proofs before the joinder of the issue.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » The declarations of the parties
|The judge may always question the parties the more closely to elicit the truth. He must do so if requested by one of the parties, or in order to prove a fact which the public interest requires to be placed beyond doubt.
|§1 A party who is lawfully questioned is obliged to respond and to tell the whole truth.
§2 If a party has refused to reply, it is for the judge to evaluate what, as far as the proof of the facts is concerned, can be deduced therefrom.
|Unless a grave reason suggests otherwise, in cases in which the public good is at stake the judge is to administer to the parties an oath that they will tell the truth, or at least that what they have said is the truth. In other cases, it is left to the prudent discretion of the judge to determine whether an oath is to be administered.
|The parties, the promotor of justice and the defender of the bond may submit to the judge propositions upon which a party is to be questioned.
|The provisions of can. 15482, n. 1, 1552 and 1558-1565 concerning witnesses are to be observed, with the appropriate qualifications, in the questioning of the parties.
|A judicial confession is an assertion of fact against oneself, concerning a matter relevant to the trial, which is made by a party before a judge who is legally competent; this is so whether the assertion is made in writing or orally, whether spontaneously or in response to the judge’s questioning.
|§1 In a private matter and where the public good is not at stake, a judicial confession of one party relieves the other parties of the onus of proof.
§2 In cases which concern the public good, however, a judicial confession, and declarations by the parties which are not confessions, can have a probative value that is to be weighed by the judge in association with the other circumstances of the case, but the force of full proof cannot be attributed to them unless there are other elements which wholly corroborate them.
|It is for the judge, having considered all the circumstances, to evaluate the weight to be given to an extra-judicial confession which is introduced into the trial.
|A confession, or any other declaration of a party, is devoid of all force if clearly shown to be based on an error of fact or to have been extracted by force or grave fear.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents
|In every type of trial documentary proof is admitted, whether the documents be public or private.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents » The nature and trustworthiness of documents
|§1 Public ecclesiastical documents are those which an official person draws up in the exercise of his or her function in the Church and in which the formalities required by law have been observed.
§2 Public civil documents are those which are legally regarded as such in accordance with the laws of each place.
§3 All other documents are private.
|Unless it is otherwise established by contrary and clear arguments, public documents constitute acceptable evidence of those matters which are directly and principally affirmed in them.
|A private document, whether acknowledged by a party or admitted by a judge, has the same probative force as an extra-judicial confession, against its author or the person who has signed it and against persons whose case rests on that of the author or signatory. Against others it has the same force as have declarations by the parties which are not confessions, in accordance with can. 1536 §2.
|If documents are shown to have been erased, amended, falsified or otherwise tampered with, it is for the judge to evaluate to what extent, if any, they are to be given credence.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Proof through documents » The presentation of documents
|Documents do not have probative force at a trial unless they are submitted in original form or in authentic copy and are lodged in the office of the tribunal, so that they may be inspected by the judge and by the opposing party.
|The judge can direct that a document common to each of the parties is to be submitted in the process.
|§1 No one is obliged to exhibit documents, even if they are common, which cannot be communicated without danger of the harm mentioned in can. 1548
§2, n. 2, or without the danger of violating a secret which is to be observed.
§2 If, however, at least an extract from a document can be transcribed and submitted in copy without the disadvantages mentioned, the judge can direct that it be produced in that form.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies
|Proof by means of witnesses is admitted in all cases, under the direction of the judge.
|§1 Witnesses must tell the truth to a judge who lawfully questions them.
§2 Without prejudice to the provisions of can. 1550 §2, n. 2 the following are exempted from the obligation of replying to questions:
1° clerics, in those matters revealed to them by reason of their sacred ministry; civil officials, doctors, midwives, advocates, notaries and others who are bound by the secret of their office, even on the ground of having offered advice, in respect of matters subject to this secret;
2° those who fear that, as a result of giving evidence, a loss of reputation, dangerous harassment or some other grave evil will arise for themselves, their spouses, or those related to them by consanguinity or affinity.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » Those who can be witnesses
|Everyone can be a witness, unless expressly excluded, whether wholly or in part, by the law.
|§1 Minors under the age of fourteen years and those who are of feeble mind are not admitted to give evidence. They can, however, be heard if the judge declares by a decree that it would be appropriate to do so.
§2 The following are deemed incapable of being witnesses:
1° the parties in the case or those who appear at the trial in the name of the parties; the judge and his assistant; the advocate and those others who in the same case assist or have assisted the parties;
2° priests, in respect of everything which has become known to them in sacramental confession, even if the penitent has asked that these things be made known.
Moreover, anything that may in any way have been heard by anyone on the occasion of confession, cannot be accepted even as an indication of the truth.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The introduction and exclusion of witnesses
|A party who has introduced a witness may forego the examination of that witness, but the opposing party may ask that the witness nevertheless be examined.
|§1 When proof by means of witnesses is sought, the names and addresses of the witnesses are to be communicated to the tribunal.
§2 The propositions on which the interrogation of the witnesses is requested, are to be submitted within the time-limit determined by the judge; otherwise, the request is to be deemed abandoned.
|It is for the judge to curb an excessive number of witnesses.
|Before witnesses are examined, their names are to be communicated to the parties. If, in the prudent opinion of the judge, this cannot be done without great difficulty, it is to be done at least before the publication of the evidence.
|Without prejudice to the provisions of can. 1550, a party may request that a witness be excluded, provided a just reason for exclusion is established before the witness is examined.
|The summons of a witness is effected by a decree of the judge lawfully notified to the witness.
|A properly summoned witness is to appear, or to make known to the judge the reason for being absent.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The examination of witnesses
|§1 Witnesses are to be examined at the office of the tribunal unless the judge deems otherwise.
§2 Cardinals, Patriarchs, Bishops, and those who in their own civil law enjoy a similar favour, are to be heard at the place selected by themselves.
§3 Without prejudice to the provisions of cann. 1418 and 1469 §2, the judge is to decide where witnesses are to be heard for whom, by reason of distance, illness or other impediment, it is impossible or difficult to come to the office of the tribunal.
|The parties cannot be present at the examination of the witnesses unless, especially when there is question of a private interest, the judge has determined that
they are to be admitted. Their advocates or procurators, however, may attend, unless by reason of the circumstances of matter and persons, the judge has determined that the proceedings are to be in secret.
|§1 The witnesses are to be examined individually and separately.
§2 If in a grave matter the witnesses disagree either among themselves or with one of the parties, the judge may arrange for those who differ to meet or to confront one another, but must, in so far as possible, eliminate discord and scandal.
|The examination of a witness is conducted by the judge, or by his delegate or an auditor, who is to be attended by a notary. Accordingly, unless particular law provides otherwise, if the parties or the promotor of justice or the defender of the bond or the advocates who are present at the hearing have additional questions to put to the witness, they are to propose these not to the witness, but to the judge, or to the one who is taking the judge’s place, so that he or she may put them.
|§1 The judge is to remind the witness of the grave obligation to tell the whole truth and nothing but the truth.
§2 The judge is to administer an oath to the witness in accordance with can. 1532. If, however, a witness refuses to take an oath, he or she is to be heard unsworn.
|The judge is first of all to establish the identity of the witness. The relationship which the witness has with the parties is to be probed, and when specific questions concerning the case are asked of the witness enquiry is to be made into the sources of his or her knowledge and the precise time the witness came to know the matters which are asserted.
|The questions are to be brief, and appropriate to the understanding of the person being examined. They are not to encompass a number of matters at the same time, nor be captious or deceptive. They are not to be leading questions, nor give any form of offence. They are to be relevant to the case in question.
|§1 The questions are not to be made known in advance to the witnesses.
§2 If, however, the matters about which evidence is to be given are so remote in memory that they cannot be affirmed with certainty unless they are recalled beforehand, the judge may, if he thinks this can safely be done, advise the witness in advance about certain aspects of the matter.
|The witnesses are to give evidence orally. They are not to read from a script, except where there is a question of calculations or accounts; in this case, they may consult notes which they have brought with them.
|§1 The replies are to be written down at once by the notary. The record must show the very words of the evidence given, at least in what concerns those things which bear directly on the matter of the trial.
§2 The use of a tape-recorder is allowed, provided the replies are subsequently committed to writing and, if possible, signed by the deponents.
|The notary is to mention in the acts whether the oath was taken or excused or refused; who were present, parties and others; the questions added ex officio; and in general, everything worthy of record which may have occurred while the witnesses were being examined.
|§1 At the conclusion of the examination, the record of the evidence, either as written down by the notary or as played back from the tape-recording, must be communicated to the witness, who is to be given the opportunity of adding to, omitting from, correcting or varying it.
§2 Finally, the witness, the judge and the notary must sign the record.
|Before the acts or the testimony are published, witnesses, even though already examined, may be called for re-examination, either at the request of a party or ex officio. This may be done if the judge considers it either necessary or useful, provided there is no danger whatever of collusion or of inducement.
|Witnesses must be refunded both the expenses they incurred and the losses they sustained by reason of their giving evidence, in accordance with the equitable assessment of the judge.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Witnesses and testimonies » The trustworthiness of testimonies
|In weighing evidence the judge may, if it is necessary, seek testimonial letters, and is to take into account:
1° the condition and uprightness of the witness
2° whether the knowledge was acquired at first hand, particularly ifit was something seen or heard personally, or whether it was opinion, rumour or hearsay;
3° whether the witness is constant and consistent, or varies, is uncertain or vacillating;
4° whether there is corroboration of the testimony, and whether it is confirmed or not by other items of evidence.
|The deposition of one witness cannot amount to full proof, unless the witness is a qualified one who gives evidence on matters carried out in an official capacity, or unless the circumstances of persons and things persuade otherwise.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Experts
|The services of experts are to be used whenever, by a provision of the law or of the judge, their study and opinion, based upon their art or science, are required to establish some fact or to ascertain the true nature of some matter.
|It is for the judge, after hearing the opinions or suggestions of the parties, to appoint the experts or, if such is the case, to accept reports already made by other experts.
|Experts can be excluded or objected to for the same reasons as witnesses.
|§1 The judge in his decree must define the specific terms of reference to be considered in the expert’s task, taking into account whatever may have been gathered from the litigants.
§2 The expert is to be given the acts of the case, and any documents and other material needed for the proper and faithful discharge of his or her duty.
§3 The judge, after discussion with the expert, is to determine a time for the completion of the examination and the submission of the report.
|§1 Each expert is to complete a report distinct from that of the others, unless the judge orders that one report be drawn up and signed by all of them. In this case, differences of opinion, if there are such, are to be faithfully noted.
§2 Experts must clearly indicate the documents or other appropriate means by which they have verified the identity of persons, places or things. They are also to state the manner and method followed in fulfilling the task assigned to them, and the principal arguments upon which their conclusions are based.
§3 If necessary, the expert may be summoned by the judge to supply further explanations.
|§1 The judge is to weigh carefully not only the expert’s conclusions, even when they agree, but also all the other circumstances of the case.
§2 When he is giving the reasons for his decision, the judge must state on what grounds he accepts or rejects the conclusions of the experts.
|Experts are to be paid their expenses and honorariums. These are to be determined by the judge in a proper and equitable manner, with due observance of particular law.
|§1 Parties can designate their own experts, to be approved by the judge.
§2 If the judge admits them, these experts can inspect the acts of the case, in so far as required for the discharge of their duty, and can be present when the appointed experts fulfil their role. They can always submit their reports.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Judicial examination and inspection
|If, in order to decide the case, the judge considers it opportune to visit some place, or inspect some thing, he is to set this out in a decree. After he has heard the parties, the decree is to give a brief description of what is to be made available for this access.
|After the inspection has been carried out, a document concerning it is to be drawn up.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Proofs » Presumptions
|A presumption is a probable conjecture about something which is uncertain. Presumptions of law are those stated in the law; human presumptions are those made by a judge.
|A person with a presumption of law in his or her favour is freed from the onus of proof, which then falls on the other party.
|The judge is not to make presumptions which are not stated in the law, other than on the basis of a certain and determinate fact directly connected to the matter in dispute.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Incidental Cases
|An incidental matter arises when, after the case has begun by the summons, a question is proposed which, even though not expressly raised in the petition which introduced the case, is yet so relevant to the case that it needs to be settled before the principal question.
|An incidental matter is proposed before the judge who is competent to decide the principal case. It is raised in writing or orally, indicating the connection between it and the principal case.
|§1 When the judge has received the petition and heard the parties, he is to decide with maximum expedition whether the proposed incidental matter has a foundation in, and a connection with, the principal matter, or whether it is to be rejected from the outset. If he admits it he must decide whether it is of such gravity that it needs to be determined by an interlocutory judgement or by a decree.
§2 If, however, he concludes that the incidental matter is not to be decided before the definitive judgement, he is to determine that account be taken of it when the principal matter is decided.
|§1 If the incidental matter is to be decided by judgement, the norms for a contentious oral process are to be observed unless, because of the gravity of the issue, the judge deems otherwise.
§2 If it is to be decided by decree, the tribunal can entrust the matter to an auditor or to the presiding judge.
|Before the principal matter is concluded, the judge or the tribunal may for a just reason revoke or alter an interlocutory judgement or decree. This can be done either at the request of a party or ex officio by the judge after he has heard the parties.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Incidental Cases » Parties who do not appear
|§1 If a respondent is summoned but does not appear, and either does not offer an adequate excuse for absence or has not replied in accordance with can. 1507
§1, the judge is to declare the person absent from the process, and decree that the case is to proceed to the definitive judgement and to its execution, with due observance of the proper norms.
§2 Before issuing the decree mentioned in §1, the judge must make sure, if necessary by means of another summons, that a lawful summons did reach the respondent within the canonical time.
|§1 If the respondent thereafter appears before the judge, or replies before the trial is concluded, he or she can bring forward conclusions and proofs, without prejudice to the provisions of can. 1600; the judge is to take care, however, that the process is not deliberately prolonged by lengthy and unnecessary delays.
§2 Even if the respondent has neither appeared nor given a reply before the case is decided, he or she can challenge the judgement; if the person can show that there was a just reason for being absent, and that there was no fault involved in not intimating this earlier, a plaint of nullity can be lodged.
|If the plaintiff does not appear on the day and at the hour arranged for the joinder of the issue, and does not offer a suitable excuse:
1° the judge is to summon the plaintiff again;
2° if the plaintiff does not obey the new summons, it is presumed that the case has been abandoned in accordance with can. 1524--1525;
3° if the plaintiff should want to intervene at a subsequent stage in the process, the provisions of can. 1593 are to be observed.
|§1 A party, whether plaintiff or respondent, who is absent from the trial, and who does not establish the existence of a just impediment, is bound to pay the expenses which have been incurred in the case because of this absence, and also, if need be, to indemnify the other party.
§2 If both the plaintiff and the respondent were absent from the trial, they are jointly bound to pay the expenses of the case.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Incidental Cases » The intervention of a third person in a case
|§1 Any person with a legitimate interest can be allowed to intervene in a case in any instance of the suit, either as a party defending his or her own right or, in an accessory role, to help one of the litigants.
§2 To be admitted, however, the person must, before the conclusion of the case, produce to the judge a petition which briefly establishes the right to intervene.
§3 A person who intervenes in a case is to be admitted at that stage which the case has reached. If the case has reached the evidence stage, a brief and peremptory time-limit is to be assigned within which to bring forward evidence.
|A third party whose intervention is seen to be necessary must be called into the case by the judge, after he has consulted the parties.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Publication of the Acts, the Conclusion of the Case, and the Discussion of the Case
|§1 When the evidence has been assembled, the judge must, under pain of nullity, by a decree permit the parties and their advocates to inspect at the tribunal office those acts which are not yet known to them. Indeed, if the advocates so request, a copy of the acts can be given to them. In cases which concern the public good, however, the judge can decide that, in order to avoid very serious dangers, some part or parts of the acts are not to be shown to anyone; he must take care, however, that the right of defence always remains intact.
§2 To complete the evidence, the parties can propose other items of proof to the judge. When these have been assembled the judge can, if he deems it appropriate, again issue a decree as in §1.
|§1 When everything concerned with the production of evidence has been completed, the conclusion of the case is reached.
§2 This conclusion occurs when the parties declare that they have nothing further to add, or when the canonical time allotted by the judge for the production of evidence has elapsed, or when the judge declares that he considers the case to be sufficiently instructed.
§3 By whichever way the case has come to its conclusion, the judge is to issue a decree declaring that it is concluded.
|Only in the following situations can the judge, after the conclusion of the case, still recall earlier witnesses or call new ones, or make provision for other evidence not previously requested:
1° in cases in which only the private good of the parties is involved if all the parties agree;
2° in other cases, provided that the parties have been consulted, that a grave reason exists, and that all danger of fraud or subornation is removed;
3° in all cases, whenever it is probable that, unless new evidence is admitted, the judgement will be unjust for any of the reasons mentioned in can. 1645 §2, nn. 1-3.
§2 The judge can, however, command or permit the presentation of a document which, even without fault of the interested party, could not be presented earlier.
§3 New evidence is to be published according to can. 1598 §1.
|When the case has been concluded, the judge is to determine a suitable period of time for the presentation of pleadings and observations.
|§1 Pleadings and observations are to be in writing unless the judge, with the consent of the parties, considers it sufficient to have a discussion before the tribunal in session.
§2 If the pleadings and the principal documents are to be printed, the prior permission of the judge is required, and the obligation of secrecy, where it exists, is still to be observed.
§3 The directions of the tribunal are to be observed in questions concerning the length of the pleadings, the number of copies and other similar matters.
|§1 When the pleadings and observations have been exchanged, each party can make reply within a brief period of time determined by the judge.
§2 This right is given to the parties once only, unless for a grave reason the judge considers that the right to a second reply is to be given; if this right is given to one party, it is to be considered as given to the other as well.
§3 The promotor of justice and the defender of the bond have the right to respond to every reply of the parties.
|§1 It is absolutely forbidden that any information given to the judge by the parties or the advocates, or by any other persons, be excluded from the acts of the case.
§2 If the pleadings in the case are made in writing, the judge may, in order to clarify any outstanding issues, order that a moderate oral discussion be held before the tribunal in session.
|The notary is to be present at the oral discussion mentioned in can. 1602
§1 and 1604 §2, so that, if the judge so orders, or the parties so request and the judge consents, the notary can immediately make a written report of what has been discussed and concluded.
|If the parties neglect to prepare their pleadings within the time allotted to them, or if they entrust themselves to the knowledge and conscience of the judge, and if at the same time the judge perceives the matter quite clearly from the acts and the proofs, he can pronounce judgement at once. He must, however, seek the observations of the promotor of justice and the defender of the bond if they were engaged in the trial.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Pronouncements of the Judge
|A principal case which has been dealt with in judicial fashion is decided by the judge by a definitive judgement. An incidental matter is decided by an interlocutory judgement, without prejudice to can. 1589
|§1 To give any judgement, the judge must have in his mind moral certainty about the matter to be decided in the judgement.
§2 The judge must derive this certainty from the acts of the case and from the proofs.
§3 The judge must conscientiously weigh the evidence, with due regard for the provisions of law about the efficacy of certain evidence.
§4 A judge who cannot arrive at such certainty is to pronounce that the right of the plaintiff is not established and is to find for the respondent except in a case which enjoys the favour of law, when he is to pronounce in its favour.
|§1 The presiding judge of a collegiate tribunal decides the day and time when it is to meet for discussion. Unless a special reason requires otherwise, the meeting is to be at the tribunal office.
§2 On the day appointed for the meeting, the individual judges are to bring their written conclusions on the merits of the case, with the reasons in law and in fact for reaching their conclusions. These conclusions are to be added to the acts of the case and to be kept in secrecy.
§3 Having invoked the divine Name, they are to offer their conclusions in order, beginning always with the ‘ponens’ or ‘relator’ in the case, and then in order of precedence. Under the chairmanship of the presiding judge, they are to hold their discussion principally with a view to establishing what is to be stated in the dispositive part of the judgement.
§4 In the discussion, each one is permitted to depart from an original conclusion. A judge who does not wish to accede to the decision of the others can demand that, if there is an appeal, his or her conclusions be forwarded to the higher tribunal.
§5 If the judges do not wish, or are unable, to reach a decision in the first discussion, they can defer their decision to another meeting, but not beyond one week, unless the instruction of the case has to be completed in accordance with can. 1600.
|§1 If there is a sole judge, he will draw up the judgement.
§2 In a collegiate tribunal, the ‘ponens’ or ‘relator’ is to draw up the judgement, using as reasons those tendered by the individual judges in their discussion, unless the reasons to be preferred have been defined by a majority of the judges. The judgement must then be submitted to the individual judges for their approval.
§3 The judgement is to be issued not later than one month from the day on which the case was decided, unless in a collegiate tribunal the judges have for grave reasons stipulated a longer time.
|The judgement must:
1° define the controversy raised before the tribunal, giving appropriate answers to the individual questions;
2° determine the obligations of the parties arising from the trial and the manner in which these are to be fulfilled
3° set out the reasons or motives, both in law and in fact, upon which the dispositive part of the judgement is based;
4° apportion the expenses of the suit.
|§1 The judgement, after the invocation of the divine Name must state in order the judge or tribunal, and the plaintiff, respondent and procurator, with names and domiciles duly indicated. It is also to name the promotor of justice and the defender of the bond if they were engaged in the trial.
§2 It must then briefly set out the alleged facts, with the conclusions of the parties and the formulation of the doubt.
§3 Then follows the dispositive part of the judgement, prefaced by the reasons which support it.
§4 It ends with the date and the place in which it was given, and with the signature of the judge or, in the case of a collegiate tribunal, of all the judges, and of the notary.
|The rules set out above for a definitive judgement are to be adapted also to interlocutory judgements.
|A judgement is to be published as soon as possible, with an indication of the ways in which it can be challenged. Before publication it has no effect, even if the dispositive part may, with the permission of the judge, have been notified to the parties.
|The publication or notification of the judgement can be effected by giving a copy of the judgement to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509.
|§1 A judgement must be corrected or completed by the tribunal which gave it if, in the text of a judgement, there is an error in calculations, or a material error in the transcription of either the dispositive part or the presentation of the facts or the pleadings of the parties, or if any of the items required by can. 1612, §4 are omitted. This is to be done either at the request of the parties or ex officio, but always after having consulted the parties and by a decree appended to the foot of the judgement.
§2 If one party is opposed, an incidental question is to be decided by a decree.
|Other pronouncements of a judge apart from the judgement, are decrees. If they are more than mere directions about procedure, they have no effect unless they give at least a summary of their reasons or refer to motives expressed in another act.
|An interlocutory judgement or a decree has the force of a definitive judgement if, in respect of at least one of the parties, it prevents the trial, or brings to an end the trial itself or any instance of it.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Challenging of the Sentence » Complaint of nullity against the sentence
|Without prejudice to cann. 1622 and 1623, whenever a case concerns the good of private individuals, acts which are null with a nullity established by positive law are validated by the judgement itself, if the nullity was known to the party making the plaint and was not raised with the judge before the judgement.
|A judgement is null with a nullity which cannot be remedied,
1° it was given by a judge who was absolutely non-competent;
2° it was given by a person who has no power to judge in the tribunal in which the case was decided;
3° the judge was compelled by force or grave fear to deliver judgement;
4° the trial took place without the judicial plea mentioned in can. 1501, or was not brought against some party as respondent;
5° it was given between parties of whom at least one has no right to stand before the court;
6° someone acted in another’s name without a lawful mandate;
7° the right of defence was denied to one or other party;
8° the controversy has not been even partially decided.
|In respect of the nullity mentioned in can. 1620, a plaint of nullity can be made in perpetuity by means of an exception, or within ten years of the date of publication of the judgement by means of an action before the judge who delivered the judgement.
|A judgement is null with a nullity which is simply remediable, if:
1° contrary to the requirements of can. 1425, §1, it was not given by the lawful number of judges;
2° it does not contain the motives or reasons for the decision;
3° it lacks the signatures prescribed by the law;
4° it does not contain an indication of the year, month, day and place it was given;
5° it is founded on a judicial act which is null and whose nullity has not been remedied in accordance with can. 1619;
6° it was given against a party who, in accordance with can. 1593, §2, was lawfully absent.
|In the cases mentioned in can. 1622, a plaint of nullity can be proposed within three months of notification of the publication of the judgement.
|The judge who gave the judgement is to consider the plaint of its nullity. If the party fears that the judge who gave the judgement is biased, and consequently considers him suspect, he or she can demand that another judge take his place in accordance with can. 1450.
|Within the time limit established for appeal, a plaint of nullity can be proposed together with the appeal.
|§1 A plaint of nullity can be made not only by parties who regard themselves as injured, but also by the promotor of justice and the defender of the bond, whenever they have a right to intervene.
§2 Within the time-limit established in can. 1623, the judge himself can retract or correct an invalid judgement he has given, unless in the meantime an appeal joined to a plaint of nullity has been lodged, or the nullity has been remedied by the expiry of the time-limit mentioned in can. 1623.
|Cases concerning a plaint of nullity can be dealt with in accordance with the norms for an oral contentious process.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Challenging of the Sentence » Appeal
|Without prejudice to the provisions of can. 1629, a party who considers him or herself to be injured by a judgement has a right to appeal from the judgement to a higher judge; in cases in which their presence is required, the promotor of justice and the defender of the bond have likewise the right to appeal.
|No appeal is possible against:
1° a judgement of the Supreme Pontiff himself, or a judgement of the Apostolic
2° a judgement which is null, unless the appeal is lodged together with a plaint of nullity, in accordance with can. 1625;
3° a judgement which has become an adjudged matter
4° a decree of the judge or an interlocutory judgement, which doesnot have the force of a definitive judgement, unless the appeal is lodged together with an appeal against the definitive judgement;
5° a judgement or a decree in a case in which the law requires that the matter be settled with maximum expedition.
|§1 The appeal must be lodged with the judge who delivered the judgement, within a peremptory time-limit of fifteen canonical days from notification of the publication of the judgement.
§2 If it is made orally, the notary is to draw up the appeal in writing in the presence of the appellant.
|If a question arises about the right of appeal, the appeal tribunal is to determine it with maximum expedition, in accordance with the norms for an oral contentious process.
|§1 If there is no indication of the tribunal to which the appeal is directed, it is presumed to be made of the tribunal mentioned in cann. 1438 and 1439.
§2 If the other party has resorted to some other appeal tribunal, the tribunal which is of the higher grade is to determine the case, without prejudice to can. 1415.
|The appeal is to be pursued before the appeal judge within one month of its being forwarded, unless the originating judge allows the party a longer time to pursue it.
|§1 To pursue the appeal, it is required and is sufficient that the party request the assistance of the higher judge to amend the judgement which is challenged, enclosing a copy of the judgement and indicating the reasons for the appeal.
§2 If the party is unable to obtain a copy of the appealed judgement from the originating tribunal within the canonical time-limit, this timelimit is in the meantime suspended. The problem is to be made known to the appeal judge, who is to oblige the originating judge by precept to fulfil his duty as soon as possible.
§3 In the meantime, the originating judge must forward the acts to the appeal court in accordance with can. 1474.
|The appeal is considered to be abandoned if the time-limits for an appeal before either the originating judge or the appeal judge have expired without action being taken.
|§1 The appellant can renounce the appeal, with the effects mentioned in can. 1525.
§2 Unless the law provides otherwise, an appeal made by the defender of the bond or the promotor of justice, can be renounced by the defender of the bond or the promotor of justice of the appeal tribunal.
|§1 An appeal made by the plaintiff benefits the respondent, and vice versa.
§2 If there are several respondents or plaintiffs, and the judgement is challenged by only one of them, or is made against only one of them, the challenge is considered to be made by all and against all whenever the thing requested is an individual one or the obligation is a joint one.
§3 If one party challenges a judgement in regard to one ground, the other party can appeal incidentally on the other grounds, even if the canonical time-limit for the appeal has expired. This incidental case is to be appealed within a peremptory time-limit of fifteen days from the day of notification of the principal appeal.
§4 Unless the contrary is clear, an appeal is presumed to be against all the grounds of the judgement.
|An appeal suspends the execution of the judgement.
|§1 Without prejudice to the provision of can. 1683, a new ground cannot be introduced at the appeal grade, not even by way of the useful accumulation of grounds. So the joinder of the issue can concern itself only with the confirmation or the reform of the first judgement, either in part or in whole.
§2 New evidence is admitted only in accordance with can. 1600.
|With the appropriate adjustments, the procedure at the appeal grade is to be the same as in first instance. Unless the evidence is to be supplemented, however,
once the issue has been joined in accordance with can. 1513 §1 and can. 1639 §1, the judges are to proceed immediately to the discussion of the case and the judgement.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Res Iudicata and Restitutio in Integrum » Res iudicata
|Without prejudice to can. 1643, an adjudged matter occurs when:
1° there are two conforming judgements between the same parties about the same matter and on the same grounds;
2° no appeal was made against the judgement within the canonical time-limit;
3° the trial has been abated or renounced in the appeal grade;
4° a definitive judgement has been given from which, in accordance with can. 1629, there is no appeal.
|§1 An adjudged matter has the force of law and cannot be challenged directly, except in accordance with can. 1645 §1.
§2 It has the effect of law between the parties; it gives the right to an action arising from the judgement and to an exception of an adjudged matter; to prevent a new introduction of the same case, the judge can even declare such an exception ex officio.
|Cases concerning the status of persons never become an adjudged matter, not excepting cases which concern the separation of spouses.
|§1 If two conforming sentences have been given in cases concerning the status of persons, recourse to a tribunal of appeal can be made at any time, to be supported by new and serious evidence or arguments which are to be submitted within a peremptory time-limit of thirty days from the time the challenge was made.
Within one month of receiving the new evidence and arguments, the appeal tribunal must declare by a decree whether or not a new presentation of the case is to be admitted.
§2 Recourse to a higher tribunal to obtain a new presentation of the case does not suspend the execution of the judgement, unless the law provides otherwise or the appeal tribunal orders a suspension in accordance with can. 1650 §3.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Res Iudicata and Restitutio in Integrum » Restitutio in integrum
|§1 Against a judgement which has become an adjudged matter there can be a total reinstatement, provided it is clearly established that the judgement was unjust.
§2 Injustice is not, however, considered clearly established unless:
1° the judgement is so based on evidence which is subsequently shown to be false, that without this evidence the dispositive part of the judgement could not be sustained;
2° documents are subsequently discovered by which new facts demanding a contrary decision are undoubtedly proven;
3° the judgement was given through the deceit of one party to the harm of the other;
4° a provision of a law which was not merely procedural was evidently neglected;
5° the judgement runs counter to a preceding decision which has become an adjudged matter.
|§1 Total reinstatement based on the reasons mentioned in can. 1645 §2, nn. 1-3, is to be requested from the judge who delivered the judgement within three months from the day on which these reasons became known.
§2 Total reinstatement based on the reasons mentioned in can. 1645 §2, nn. 4 and 5, is to be requested from the appeal tribunal within three months of notification of the publication of the judgement. In the case mentioned in can. 1645 §2, n. 5, if the preceding decision is not known until later, the time-limit begins at the time the knowledge was obtained.
§3 The time-limits mentioned above do not apply for as long as the aggrieved party is a minor.
|§1 A plea for total reinstatement suspends the execution of a judgements which has not yet begun.
§2 If there are probable indications leading the judge to suspect that the plea was made to cause delays in execution, he may decide that the judgement be executed.
The person seeking total reinstatement is, however, to be given suitable guarantees that, if it is granted, he or she will be indemnified.
|Where total reinstatement is granted, the judge must pronounce judgement of the merits of the case.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » Judicial Expenses and Gratuitous Legal Assistance
|§1 The Bishop who is responsible for governing the tribunal is to establish norms concerning:
1° declarations that parties are liable for the payment or reimbursement of judicial expenses;
2° the honorariums for advocates, experts and interpreters, and the expenses of witnesses;
3° the granting of free legal aid and the reduction of expenses;
4° the payment of damages owed by a person who not merely lost the case, but was rash in having recourse to litigation;
5° the money to be deposited, or the guarantee to be given, for the payment of expenses and the compensation of damages.
§2 No distinct appeal exists from a pronouncement concerning expenses, honorariums and damages. The parties can, however, have recourse within ten days to the same judge, who can change the sum involved.
|Processes » The Contentious Trial » The Ordinary Contentious Trial » The Execution of the Sentence
|§1 A judgement which becomes adjudged matter can be executed, without prejudice to the provision of can. 1647.
§2 The judge who delivered the judgement and, if there has been an appeal, the appeal judge, can either ex officio or at the request of a party order the provisional execution of a judgement which has not yet become an adjudged matter, adding if need be appropriate guarantees when it is a matter of provisions or payments concerning necessary support. They can also do so for some other just and urgent reason.
§3 If the judgement mentioned in §2 is challenged, the judge who must deal with the challenge can suspend the execution or subject it to a guarantee, if he sees that the challenge is probably well founded and that irreparable harm could result from execution.
|Execution cannot take place before there is issued the judge’s executing decree directing that the judgement be executed. Depending on the nature of the case, this decree is to be either included in the judgement itself or issued separately.
|If the execution of the judgement requires a prior statement of reasons, this is to be treated as an incidental question, to be decided by the judge who gave the judgement which is to be executed.
|§1 Unless particular law provides otherwise, the Bishop of the diocese in which the first instance judgement was given must, either personally or through another, execute the judgement.
§2 If he refuses or neglects to do so, the execution of the judgement, at the request of an interested party or ex officio, belongs to the authority to which the appeal tribunal is subject in accordance with can. 1439 §3.
§3 Between religious, the execution of the judgement is the responsibility of the
Superior who gave the judgement which is to be executed, or who delegated the judge.
|§1 The executor must execute the judgement according to the obvious sense of the words, unless in the judgement itself something is left to his discretion.
§2 He can deal with exceptions concerning the manner and the force of the execution, but not with the merits of the case. If he has ascertained from some other source that the judgement is null or manifestly unjust according to cann. 1620, 1622 and 1645, he is to refrain from executing the judgement, and is instead to refer the matter to the tribunal which delivered the judgement and to notify the parties.
|§1 In real actions, whenever it is decided that a thing belongs to the plaintiff, it is to be handed over to the plaintiff as soon as the matter has become an adjudged matter.
§2 In personal actions, when a guilty person is condemned to hand over a movable possession or to pay money, or to give or do something, the judge in the judgement itself, or the executor according to his discretion and prudence, is to assign a time limit for the fulfilment of the obligation. This time-limit is to be not less than fifteen days nor more than six months.
|Processes » The Contentious Trial » The Oral Contentious Process
|§1 The oral contentious process dealt with in this section can be used in all cases which are not excluded by law, unless a party requests an ordinary contentious process.
§2 If the oral process is used in cases other than those permitted by the law, the judicial acts are null.
|An oral contentious process in first instance is made before a sole judge, in accordance with can. 1424.
|§1 In addition to the matters enumerated in can. 1504, the petition which introduces the suit must:
1° set forth briefly, fully and clearly the facts on which the plaintiff’s pleas are based;
2° indicate the evidence by which the plaintiff intends to demonstrate the facts and which cannot be brought forward with the petition; this is to be done in such a way that the evidence can immediately be gathered by the judge.
§2 Documents which support the plea must be added to the petition, at least in authentic copy.
|§1 If an attempt at mediation in accordance with can. 1446 §2 has proven fruitless, the judge, if he deems that the petition has some foundation, is within three days to add a decree at the foot of the petition. In this decree he is to order that a copy of the plea be notified to the respondent, with the right to send a written reply to the tribunal office within fifteen days.
§2 This notification has the effects of a judicial summons that are as mentioned in can. 1512.
|If the exceptions raised by the respondent so require, the judge is to assign the plaintiff a time-limit for a reply, so that from the material advanced by each he can clearly discern the object of the controversy.
|§1 When the time-limits mentioned in cann. 1659 and 1660 have expired, the judge, after examining the acts, is to determine the point at issue. He is then to summon all who must be present to a hearing, which is to be held within thirty days; for the parties, he is to add the formulation of the point at issue.
§2 In the summons the parties are to be informed that, to support their assertions, they can submit a short written statement to the tribunal at least three days before the hearing.
|In the hearing, the questions mentioned in can. 1459--1464 are considered first.
|§1 The evidence is assembled during the hearing, without prejudice to the provision of can. 1418.
§2 A party and his or her advocate can assist at the examination of the other parties, of the witnesses and of the experts.
|The replies of the parties, witnesses and experts, and the pleas and exceptions of the advocates, are to be written down by the notary in summary fashion, restricting the record to those things which bear on the substance of the controversy. This record is to be signed by the persons testifying.
|The judge can admit evidence which is not alleged or sought in the plea or the reply, but only in accordance with can. 1452. After the hearing of even one witness, however, the judge can admit new evidence only in accordance with can.
|If all the evidence cannot be collected during the hearing, a further hearing is to be set.
|When the evidence has been collected, an oral discussion is to take place at the same hearing.
|§1 At the conclusion of the hearing, the judge can decide the case forthwith, unless it emerges from the discussion that something needs to be added to the instruction of the case, or that there is something which prevents a judgement being correctly delivered. The dispositive part of the judgement is to be read immediately in the presence of the parties.
§2 Because of the difficulty of the matter, or for some other just reason the decision of the tribunal can be deferred for up to five canonical days.
§3 The full text of the judgement, including the reasons for it, is to be notified to the parties as soon as possible, normally within fifteen days.
|If the appeal tribunal discerns that a lower tribunal has used the oral contentious procedure in cases which are excluded by law, it is to declare the judgement invalid and refer the case back to the tribunal which delivered the judgement.
|In all other matters concerning procedure, the provisions of the canons on ordinary contentious trials are to be followed. In order to expedite matters, however, while safeguarding justice, the tribunal can, by a decree and for stated reasons, derogate from procedural norms which are not prescribed for validity.
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