AZIONE. — In Roman law, this word (Lat. actio) originally served to denote any act performed in court; later, under the formulary procedure, it was used as a synonym for a legal claim and also for a subjective right; and only in the time of Justinian did it acquire the meaning that is still properly its own, namely, the right to obtain through judicial proceedings what is owed to us (ius persequendi iudicio quod sibi debetur: Inst., IV, 6, pr.).
CONTENTS:
I. Nature of the a
II. Categories of the a
III. Essential conditions of the a
IV. Joinder and cumulation of the a
V. Extinction of the a
VI. Certain a. in particular. — VII. The criminal a.I. NATURE OF THE ACTION
While modern writers are all agreed on the specific purpose of the action, consisting in bringing about, through the intervention of the magistrate, the implementation of the will of the law, the same cannot be said with regard to its intrinsic nature. Having rejected the theories of those who saw in the action merely an aspect or manifestation of life, a means of defence, or a particular function of the subjective right (Windscheid, Puchta, Coviello and, among the canonists, Wernz-Vidal), the doctrine now prevalent considers the action a right in its own standing. But what kind of right? According to some, it is a genuine subjective right, to which there corresponds an obligation to render a performance (Wach, Degenholb, Carnelutti); according to others, a merely potestative right, understood as a power granted by law to produce certain legal effects (Chiovenda, Calamandrei). According to some, it is a right against the State or, in any event, against the public authority, since its object is legal protection, which can be pursued only through the activity of the judicial organs (Rocco, Laband, Zanzucchi, Carnelutti); according to others, it is a right against the obligor (Chiovenda, Betti). According to some, it is a concrete right, that is, one belonging solely to him who is in the right in the field of substantive law (Wach, Chiovenda); according to others, it is an abstract right, since it is independent of whether or not the claim which the plaintiff intends to assert is well founded (Bülow, Mortara).Without embarking upon a detailed examination of the various conflicting theories, and referring principally to the criteria followed by the ecclesiastical legislator, we limit ourselves to affirming, in the footsteps of F. Roberti (De processibus, I, 2ª ed., Roma 1941, p. 68), that the action is clearly distinct from the right in dispute—not, however, to the point of being wholly separated from it, since an action can exist only insofar as there exists, or is presumed to exist, a natural or positive right to be protected. This standpoint is fully in accordance with the system of the CIC, which, by providing in can. 1667: «Quodlibet ius., actione munitur, nisi aliud expresse cautum sit», and by enumerating in can. 1511, § 1 among the property of the Apostolic See iura et actiones sive personales sive reales, shows in the clearest manner that it carefully distinguishes the two concepts of right and action. This distinction, moreover, receives further confirmation from the actual existence of rights which the law does not protect by an action, such as, for example, the right arising from a promise of marriage (can. 1017, § 3) and the rights of excommunicated persons who are vitandi or tolerati after a condemnatory or declaratory sentence (can. 1654, § 1).
But do there exist, conversely, actions which do not have a right as their natural presupposition? The affirmative opinion, maintained by authoritative secular proceduralists who, like Chiovenda, include in this particular category the so-called actions for lesser ascertainment and those intended to obtain precautionary measures (seizure, notification of new work and the like), can readily be understood if the term «right» is taken to mean subjective right in the strict sense, that is, a faculty corresponding to a specific obligation on the part of the person against whom the action is brought; but it does not seem acceptable as an absolute proposition, especially if it is to be applied to the law of the Church. Indeed, even actions which at first sight appear perfectly autonomous and independent derive their origin and justification from the necessity of ensuring the satisfaction of a legal interest or defence against a mere danger; that is, from the need to protect a right, which may not be expressly established by a specific substantive norm, as often happens with rights said to be natural, but which nevertheless does not thereby cease to be a genuine and identifiable right.
II. CATEGORIES OF ACTIONS
The numerous and subtle distinctions introduced by Roman law, in harmony with the practice of defining the content and limiting the number of rights according to the content and number of the actions intended to protect them, were not accepted without reservation by canon law; indeed, anticipating the system of modern civil codes, it soon warned jurists against excessive attachment to the names by which actions were customarily distinguished (cf. c. 6, X, de iudiciis, II, 1). In canon law—as in secular law—there are as many actions as there are norms capable of being enforced (can. 1667). Thus, if certain typically Roman designations (such as rei vindicatio, actio ad exhibendum, nunciatio novi operis, etc.) are reproduced in the Codex, and if certain others (such as actio confessoria, actio negatoria, actio Pauliana, actio de pauperie, etc.) are still used in forensic practice, this occurs either because of the natural difficulty of abandoning every trace of the ancient formulas or for reasons of technical convenience, but not because of substantive requirements.This does not, however, prevent actions from still being divided today, according to criteria established by a doctrine of many centuries, into various more or less extensive categories.
The first and fundamental distinction is that between contentious action and criminal action: the former directed toward the defense of the rights of individuals (whether natural or juridical persons) and toward establishing the legal facts concerning them; the latter tending toward the restoration of social order through the repression of crimes (cf. can. 1552, § 2, nn. 1-2). Because of the particularly distinctive place occupied by criminal action in the system of procedural law, we consider it appropriate to treat it in a separate paragraph, whereas what has been said thus far and what follows immediately concern chiefly contentious action.
According to the nature of the rights they are called upon to defend, actions are divided into: personal and real (whether there exist mixed actions, that is, actions having as their object at the same time the defense of personal rights and of real rights, is disputed in doc-
trine); actions concerning immovables and movables; petitory and possessory actions. Petitory actions are those through which one seeks to obtain the definitive recognition of a right founded on a legitimate title; possessory actions are those which, independently of the existence of any title, protect a factual situation (cf. can. 1668).
According to the nature of the judicial measures that constitute the immediate object of actions, the following distinctions are made: a) the action for condemnation, intended to obtain a judgment which, on the basis of a precise legal norm, compels the defendant to render a performance toward the plaintiff; b) the action for ascertainment, or declaratory action, seeking a judgment affirming or denying the existence of a given legal relationship or fact (such, for example, is the action for the nullity of marriage or of another contract); c) the constitutive action, which seeks, through the judge’s decision, the establishment of a new legal relationship or the termination of a pre-existing legal relationship (e.g., the action for restitutio in integrum [cann. 1687-89], the action for revocation of a mandate [can. 1664], the action for personal separation of spouses [cann. 1129-31], etc.). To these may be added: the summary action, which seeks to secure enforcement of the law through determinations having a predominantly executory function (cf., concerning the granting of provisional enforceability of judgments, can. 1917, § 2); the security or precautionary action, which seeks to enforce the law through precautionary or provisional measures (such as the action for sequestration and the action for denunciation of new construction or of threatened damage); the executory action, which seeks to enforce the law through executory measures (cf. cann. 1918-24).
Other distinctions established by usage are those between transmissible and non-transmissible, prescriptible and imprescriptible, principal and accessory, public and private actions; whereas no trace remains in present-day laws and practice of certain categories derived from Roman law, such as those of actiones honorariae, directae, utiles, stricti iuris, bonae fidei, etc.
III. ELEMENTS AND CONDITIONS OF THE A
In every a. the following three elements can be identified: a) the subjects, that is, the person to whom the right of action belongs (active subject) and the person against whom this right may be exercised (passive subject); b) the cause, that is, the juridical fact on which the a. is founded and which generally in turn consists of two elements: a right, and a state of affairs contrary to the right (causa petendi); c) the object, consisting in the juridical good toward which the power of action is directed (petitum). The immediate object is the judge’s ruling through which the will of the law is implemented (judgment of condemnation or declaration, decree of provisional enforcement, etc.); the mediate object is the good toward whose attainment the implementation of the law is directed (sum to be paid, status as spouse, etc.).In identifying the subjects, regard must be had to their juridical rather than physical identity, and it must be borne in mind that the subjects of the a. do not always correspond to the subjects of the substantive juridical relationship (as occurs, for example, in the various cases of procedural substitution).
With regard to the causa petendi, it should be noted: 1) that it must not be confused with the claim, of which it nevertheless constitutes an element; 2) that the juridical fact must be considered as a whole, independently of the simple facts or grounds that may be included in it; hence there is no change of causa petendi if, for example, the defect of matrimonial consent ex capite vis et metus, initially alleged at the beginning of the litigation as resulting from threats of death, is subsequently shown to have originated from reverential fear; 3) that the juridical definition of the fact has no bearing on the identification of the causa petendi, in the sense that whenever the fact remains unchanged, it matters little under which provision of law it may fall; 4) that in real actions for condemnation the causa petendi is always and solely the right of ownership, the title of acquisition on the basis of which this right was established being irrelevant.
Finally, with regard to the mediate object of the a., it should be observed that, in determining it, attention must be paid to its juridical rather than its material quality, and that it does not change when it is replaced by an object that stands to the former in a part-to-whole relationship.
The elements just recalled must not be confused with the conditions of the a., that is, the conditions necessary for obtaining a favorable ruling from the judge; namely: the actual existence of a right to be asserted; standing or legal capacity to sue; and the interest in bringing an action.
The existence of the right presupposes, even before the existence of a fact or series of facts (e.g., repeated threats of death in connection with the celebration of a marriage), the existence of a rule of law (e.g., can. 1087, § 1) which, on the basis of those facts, guarantees a specific good or attributes to them a specific juridical consequence (e.g., the invalidity of the marriage).
By standing or legal capacity to sue (legitimatio ad causam) is meant the identity of the plaintiff with the person to whom, in the particular case, the law grants the a. (active standing) and the identity of the defendant with the person against whom the a. is granted (passive standing). Different from legitimatio ad causam is legitimatio ad processum, that is, the capacity to be, in general, a subject of a procedural juridical relationship (v. CAPACITÀ GIURIDICA); but this distinction does not appear to be recognized by the CIC, where both concepts are designated by the generic expression persona standi in indicio (cf., for example, cann. 1652, 1654, 1892 n. 4).
The interest in bringing an action is usually called the «measure of the a.» and is identified not so much with the interest in obtaining the good guaranteed by law as with the interest in obtaining that good through the intervention of the judicial organs. Unlike the Italian Code of Civil Procedure (cf. art. 100), the CIC contains no general provision explicitly treating interest as an indispensable condition for the exercise of the a.; but this does not mean that the canonical procedural system likewise fails to recognize its necessity.
IV. CONCURRENCE AND JOINDER OF A
The examination of the three elements mentioned in the preceding paragraph (parties, cause, and object) offers an easy and reliable criterion for identifying the a. A. are to be considered identical when all the elements are common to them; whereas a difference in even one of these produces a difference in the a.Different a. may concur or be joined.
There is concurrence of a.: a) when, although the parties are different, the a. seek the same thing (cf., for example, can. 1534, § 2, by virtue of which, against the invalid alienation of ecclesiastical goods, proceedings may be brought both by the alienator, by his superior, and finally by the individual clerics attached to the church; and one may think of the case in which a marriage is challenged as null both by the promoter of justice and by one of the spouses); b) when, the parties remaining identical, the a. seek different prestations coordinated toward a single economic purpose (e.g., restitution of the thing and payment of the price; rescission of the contract and compensation for damages); c) when the a. differ solely in the causa petendi (e.g., a. petitoria and possessoria; personal a. against the seller for delivery of the thing and real a. concerning the thing sold).
There is joinder of a. when different a. are exercised in the same proceedings. Joinder is subjective if several persons bring proceedings against the same defendant (active joinder of parties), or if a single person brings proceedings against several defendants (passive joinder of parties), or if several persons bring proceedings against several defendants (mixed joinder of parties); it is objective if several a. are exercised by the same person against the same defendant. Objective joinder is expressly permitted by the CIC (can. 1669, § 1), provided that the limits of the jurisdiction of the judge seised remain safeguarded and that the different a. are not incompatible with one another (as would occur, for example, if, in the same proceedings, the nullity of a marriage were alleged ex capite vis et metus and ex capite amentius).
Petitory and possessory a. may be joined in a single petition (can. 1670, § 1), unless the opposing party raises the exception of dispossession; moreover, the plaintiff is permitted, before the conclusio in causa (and also afterward, where the judge deems it appropriate), to change from the petitory a. to the possessory a. (can. 1671, §§ 1 and 2).
V. ESTINZIONE DELLE A
It is natural that, once the right constituting the basis of the action has been extinguished for any reason (payment, set-off, settlement, merger, etc.), the action itself should also be extinguished. In addition, however, actions may be extinguished simply through the passage of time, that is, by prescription (v.). In this matter, canon law (cf. can. 1701 in relation to cann. 1508–12) adopts the rules of the civil legislation in force in the individual countries, while nevertheless imposing certain significant limitations.VI. OF CERTAIN ACTIONS IN PARTICULAR
The CIC, while affirming the principle mentioned above, according to which the number and content of actions are inferred from the number and content of the rights in dispute, and not vice versa, consistently with its historical origin and the ancient canonical tradition, treats separately, in the book devoted to procedure and under the title De actionibus et exceptionibus (cann. 1672–1700), the following actions, derived from Roman law:A) Precautionary actions. — These are the actions of sequestration and of denunciation of new work and of impending damage, which will be discussed under the respective entries (v. DENUNCIA DI NUOVA OPERA E DI DANNO TEMUTO; SEQUESTRO).
B) Actions for nullity. — This concerns the nullity of juridical acts in general, with regard to which the code establishes: a) that an act is null only when it lacks one of its essential elements or any of those formalities or conditions required by law under penalty of nullity (can. 1680, § 1); b) that the nullity of an act does not entail the nullity of preceding or subsequent acts that do not depend upon it (can. 1680, § 2); c) that whoever performs a null act is liable for damages and costs toward the other party (can. 1681); d) that the nullity of an act may not be declared ex officio except when the public interest so requires or when the matter concerns the poor, minors, or persons assimilated to them (can. 1682).
C) Actions for rescission. — Whoever was induced by the fraud or grave threats of another to perform an act or conclude a contract intrinsically valid may request and obtain its rescission (can. 1684, § 1). An equal action, to be brought within two years, belongs to anyone who, in an onerous contract, has been injured through error (meaning accidental error, since in the event of substantial error the contract would be null) by more than half the fair price or value of the thing contracted for (can. 1684, § 2). The action may be brought both against the author of the fraud or grave fear and against any possessor in good or bad faith, without prejudice to the right of recourse (can. 1685).
D) Actions for «restitutio in integrum». — This represents an extraordinary remedy, granted for reasons of natural equity to minors and to those unable to exercise an action for rescission. It is dealt with under the entry RESTITUZIONE IN INTERO.
E) Reconventional action. — According to can. 1690, § 1, this is the action which the defendant brings before the same judge and in the same proceedings against the plaintiff, with the aim of removing or reducing the latter’s claim. As appears from this definition, it may be brought only when the plaintiff’s claim and that of the defendant may be set off against each other. It may be exercised in any contentious case, except cases of dispossession (can. 1691), and must be brought before the judge before whom the principal action was instituted (can. 1692), preferably immediately after the joinder of issue or at any other time during the proceedings, provided that it is before the judgment (can. 1630, § 1).
F) Possessory actions. — This name is given to actions intended to protect possession, namely: the actio adipiscendae, the actio retinendae, and the actio recuperandae possessioni. They will be discussed under the entry POSSESSO.
VII. CRIMINAL A
It arises from the violation of a penal norm and consists in the power to prosecute the perpetrator of a crime in court so that the just penalty may be imposed or declared against him. Some authors distinguish criminal a. from penal a., which would be directed not toward the imposition or declaration of the penalty, but toward the execution of a penalty already imposed or declared. But this distinction does not appear well founded; whereas it seems clear that, with the two expressions actio criminalis and actio poenalis, used at different times by the CIC in contrast with actio contentiosa and actio civilis, the same thing is intended.Criminal a. (or penal a.) differs from contentious a. (or civil a.) not only in its object, but also in being public, personal, and necessary: public, insofar as it seeks reparation for the indirect harm that the crime causes to society (v. DELITTO); personal, insofar as it is directed exclusively against the person of the offender; necessary, insofar as, being required by the public interest, it must (albeit with some appropriate qualification) be exercised in every case, nor may it be renounced at the parties’ discretion.
With the abolition of the distinction between public and private crimes, and the removal of every trace of the ancient a. popolare (by which anyone, as a member of the community, could bring criminals to trial), the canon law currently in force reserves the exercise of criminal a. (or accusation) solely to the promoter of justice (can. 1934); while, naturally, the faithful retain the power—which sometimes becomes an obligation—to report to that promoter crimes of which they have knowledge (can. 1935, §§ 1 and 2; V. DENUNCIA). In cases of insult and defamation, proceedings may not ordinarily be instituted without the prior complaint of the injured party (can. 1938, § 1), but this does not alter, even in this case, the nature of criminal a., since, as will be explained more fully in its proper place, complaint (v.), far from being confused with the a., simply represents a condition for its exercise.
Criminal a., according to can. 1702, is extinguished: a) by the death of the accused; b) by remission by the legitimate authority; c) by prescription. With the exception of crimes falling under the jurisdiction of the Holy Office (such as heresy, schism, apostasy, etc.), the prescriptive periods are established as follows: one year for insult; five years for crimes specifically committed against the sixth and seventh commandments of the Decalogue; ten years for simony and homicide; three years for all other offenses (can. 1703). Prescription runs from the date on which the crime was committed; and, in the case of a permanent, habitual, or continuing crime, from the day on which its permanence or continuation ceased (can. 1705, §§ 1–3).
The extinction of criminal a. does not prevent the exercise of contentious a. for compensation for the damage caused by the crime (can. 1704, n. 1); nor does it preclude the ordinary from adopting against the guilty party, if he is a cleric, the disciplinary measures of exclusion from promotion, prohibition from exercising the sacred ministry, or removal from office (cann. 1704, n. 2, and 2222, § 2).