Action

ACTION. - In Roman law, this word (Latin actio) originally served to indicate any act performed in a trial; later, under the formulary procedure, it was used as a synonym for a legal claim and even for a subjective right; and only in the age of Justinian did it assume the meaning that is still proper to it today, namely the right to obtain through a trial what is owed to us (ius persequendi iudicio quod sibi debetur: Inst., IV, 6, pr.).

I. NATURE OF THE ACTION

If modern writers are all agreed on the specific purpose of the action, which consists in bringing about, through the intervention of the magistrate, the fulfillment 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 a mere aspect or a manifestation of life or a means of defense or a particular function of the subjective right (Windscheid, Puchta, Coviello and, among the canonists, Wernz-Vidal), the doctrine prevailing today regards the action as a right in its own right. But what kind of right? According to some it is a true and proper subjective right, to which corresponds the obligation of a performance (Wach, Degenkolb, Carnelutti); according to others it is a merely potestative right, understood as a power granted by law to produce determinate juridical effects (Chiovenda, Calamandrei). According to some it is a right toward the State or, in any case, toward the public authority, inasmuch as it has as its object juridical protection, which can be pursued only through the activity of the jurisdictional organs (Rocco, Laband, Zanzucchi, Carnelutti); according to others it is a right toward the obligated party (Chiovenda, Betti). According to some it is a concrete right, that is, one that belongs solely to whoever is in the right in the field of substantive law (Wach, Chiovenda); according to others it is an abstract right, inasmuch as it prescinds from the well-foundedness or otherwise of the claim that the one acting intends to assert (Bülow, Mortara).

Without entering into a thorough examination of the various conflicting theses, 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, 2nd ed., Rome 1941, p. 68), that the action is clearly distinct from the right in dispute: not, however, to the point of separating itself from it entirely, since an action can exist only insofar as there exists, or is presumed to exist, a natural or positive right to be protected. This point of view is fully in conformity with the system of the CIC, which, providing in can. 1667: «Quodlibet ius, actione munitur, nisi aliud expresse cautum sit», and enumerating in can. 1511, § 1 among the goods of the Apostolic See iura et actiones sive personales sive reales, shows in the most evident way that it holds the two concepts of right and of action well distinct. This distinction receives, moreover, a further confirmation from the actual existence of rights that the law does not furnish with an action, as are, for example, the right arising from the promise of marriage (can. 1017, § 3) and the rights of those excommunicated vitandi or tolerati after a condemnatory or declaratory sentence (can. 1654, § 1).

But do there exist, conversely, actions that do not find in a right their natural presupposition? The affirmative opinion, upheld by authoritative lay proceduralists who, like Chiovenda, place in this particular category the so-called actions of mere ascertainment and those tending to obtain precautionary measures (sequestration, denunciation of new work and the like), can easily be understood where one takes the term «right» as a subjective right in the strict sense, that is, as a faculty to which corresponds a determinate obligation on the part of the one against whom one acts; but it does not seem acceptable as an absolute thesis, especially if it wishes to refer to the law of the Church. And in fact, even the actions that appear at first sight perfectly autonomous and independent derive their origin and their justification from the necessity of guaranteeing the satisfaction of a juridical interest or the defense against a simple danger; that is, of protecting a right, which may not be expressly sanctioned by a specific substantive norm, as often happens for the rights that are called natural, but does not for this cease to be an authentic and identifiable right.

II. CATEGORIES OF ACTION

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 the number of the actions intended to protect them, were not accepted without reservations by canonical legislation; which, indeed, anticipating the system of modern civil codes, soon put jurists on their guard against an excessive attachment to the names by which actions were customarily distinguished (cf. c. 6, X, de iudiciis, II, 1). For canon law — no less than for secular law — there are as many actions as there are norms that can be enforced (can. 1667). Thus, if certain typically Roman designations (such as rei vindicatio, actio ad exhibendum, nunciatio novi operis, etc.) are found 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 happens either because of the natural difficulty of abandoning every trace of the ancient formulas or for reasons of technical convenience, but not because of any requirements of a substantive nature.

This does not prevent actions, even today, from being divided, according to the criteria consecrated by centuries-old doctrine, into various categories, more or less broad.

The first and fundamental distinction is that between contentious action and criminal action: the one directed to the defense of the rights of individuals (whether they be natural or juridical persons) as well as to the ascertainment of the juridical facts concerning them; the other tending to the restoration of social order through the repression of crimes (cf. can. 1552, § 2, nos. 1-2). Because of the quite particular place that criminal action occupies in the system of procedural law, we consider it appropriate to treat it in a separate paragraph, while what has been said thus far and what will immediately follow refer principally to 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, having as their object at one and the same time the defense of personal rights and of real rights, is a matter of controversy in doctrine); immovable and movable; petitory and possessory. Petitory are those through which one seeks to achieve the definitive recognition of a right, founded on a legitimate title; possessory those which, independently of the existence of any title, protect a state of fact (cf. can. 1668).

According to the nature of the judicial measures that form the immediate object of actions, there are then distinguished: a) the action of condemnation, directed to obtaining a judgment which, on the basis of a precise norm of law, compels the defendant to a performance with regard to the one who brings the action; b) the action of ascertainment or declaratory action, tending to a judgment that affirms or denies the existence of a determinate juridical relationship or fact (such as, for example, the action for the nullity of marriage or of another contract); c) the constitutive action, which aims to obtain, through the pronouncement of the judge, the constitution of a new juridical relationship or the cessation of a pre-existing juridical relationship (for example, the action of restitutio in integrum [cann. 1687-89], the action for the revocation of a mandate [can. 1664], the action for the personal separation of spouses [cann. 1129-31], etc.). To these may be added: the summary action, which tends to achieve the enforcement of the law through ascertainments with a prevailing executory function (cf. for the granting of the provisional enforceability of judgments can. 1917, § 2); the assurance or precautionary action, which tends to the enforcement of the law through precautionary or provisional measures (thus the action of sequestration and the action of denunciation of new work or of feared damage); the executory action, which tends to the enforcement of the law through executory measures (cf. cann. 1918-24).

Other distinctions consecrated by usage are those between transferable and non-transferable, prescriptible and imprescriptible, principal and accessory, public and private actions; while no vestige remains in the laws and in present-day 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 ACTION

In every action the three following elements may be traced: a) the subjects, that is, the person to whom the right to act belongs (active subject) and the person before whom this right may be exercised (passive subject); b) the cause, that is, the juridical fact on which the action is founded and which generally consists in turn of two elements: a right, and a state of fact contrary to the right (causa petendi); c) the object, consisting in the juridical good to which the power to act tends (petitum). The immediate object is the judge's ruling through which the will of the law is carried into effect (judgment of condemnation or of declaration, decree of provisional execution, etc.); the mediate object is the good to whose attainment the carrying into effect of the law is directed (sum to be paid, status of spouse, etc.).

In identifying the subjects, regard must be had to their juridical identity rather than to their physical identity, and it must be borne in mind that the subjects of the action do not always correspond to the subjects of the substantive juridical relationship (which occurs, for example, in the various cases of procedural substitution).

As regards the causa petendi, let it be noted: 1) that it must not be confused with the claim of which it is likewise an element; 2) that the juridical fact must be considered as a whole, independently of the simple facts or motives that may be comprised within it; whence there is no change of causa petendi if, for example, the defect of matrimonial consent ex capite vis et metus, alleged at the beginning of the suit as deriving from threats of death, is later shown to have originated from reverential fear; 3) that the juridical definition of the fact does not affect the identification of the causa petendi, in the sense that whenever the fact remains unchanged, it matters little under which rule of law it may fall; 4) that in real actions of condemnation the causa petendi is always and only the right of ownership, the acquisitive title on the basis of which this right was constituted being of no relevance.

As regards, finally, the mediate object of the action, let it be observed that, in determining it, attention must be paid to its juridical quality rather than to its material quality, and that it does not change when it is replaced by an object that stands to the preceding one in the relation of part to whole.

With the elements just recalled are not to be confused the conditions of the action, that is, the conditions necessary to obtain from the judge a favorable ruling; namely: the actual existence of a right to be asserted; the quality or legitimation to act; the interest to act.

The existence of the right presupposes, even before the existence of a fact or of a series of facts (e.g., repeated threats of death with regard to 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 determinate good or attributes to them a determinate juridical consequence (e.g., invalidity of the marriage).

By quality or legitimation to act (legitimatio ad causam) is meant the identity of the person of the plaintiff with the person to whom, in the particular case, the law grants the action (active legitimation) and the identity of the person of the defendant with the person against whom the action is granted (passive legitimation). Different from legitimatio ad causam is legitimatio ad processum, that is, the capacity to be a subject, generally speaking, of a procedural juridical relationship (v. CAPACITÀ GIURIDICA); but this difference does not appear to be noticed by the CIC, where both concepts are designated by the generic expression persona standi in iudicio (cf., for example, cann. 1652, 1654, 1892 n. 4).

The interest to act is usually called the "measure of the action" and is identified not so much in the interest of attaining the good guaranteed by the law as in the interest of attaining that good through the intervention of the jurisdictional organs. Unlike the Italian Code of Civil Procedure (cf. art. 100), the CIC does not contain a general rule that explicitly considers interest as an indispensable condition for the exercise of the action; but this does not prevent the canonical procedural system too from recognizing its necessity.

IV. CONCURRENCE AND ACCUMULATION OF ACTION

The examination of the three elements mentioned in the preceding paragraph (parties, cause and object) offers an easy and sure criterion for the identification of actions. For actions that have all the elements in common must be considered identical, whereas the difference of even one of them produces a diversity of actions.

Different actions may be joined or cumulated.

There is a joinder of actions: a) when, although the parties are different, the actions tend toward the same thing (cf., for example, can. 1534, § 2, by virtue of which, against the invalid alienation of ecclesiastical goods, the alienator, his superior, and finally the individual clerics attached to the church may all act; and consider the case in which a marriage is accused of nullity both by the promoter of justice and by one of the spouses); b) when, the parties remaining identical, the actions tend toward different performances but coordinated to 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 actions differ solely in the causa petendi (e.g., petitory and possessory action; personal action against the seller for delivery of the thing and real action on the thing sold).

There is a cumulation of actions when different actions are brought in the same process. The cumulation is subjective if several persons act against the same defendant (active litisconsortium) or if a single person acts against several defendants (passive litisconsortium) or if several persons act against several defendants (mixed litisconsortium); it is objective if several actions are brought by the same person against the same defendant. Objective cumulation is expressly permitted by the CIC (can. 1669, § 1) provided that the limits of competence of the court seised remain intact and provided that the different actions are not incompatible with one another (as would happen, for example, if in the same trial the nullity of a marriage were alleged ex capite vis et metus and ex capite amentiae).

Petitory and possessory actions may be cumulated in a single petition (can. 1670, § 1) unless the opposing party raises the objection of spoliation; and the plaintiff is furthermore permitted, before the conclusio in causa (and even after, where the judge deems it opportune), to pass from the petitory to the possessory action (can. 1671, §§ 1 and 2).

V. EXTINCTION OF ACTIONS

It is natural that, once the right that constitutes the presupposition of the action has been extinguished for any reason whatsoever (payment, set-off, settlement, merger, etc.), the action too is extinguished. But beyond this, actions can be extinguished through the mere 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 legislations in force in the individual countries, while nevertheless imposing certain notable limitations.

VI. ON CERTAIN ACTIONS IN PARTICULAR

The CIC, while also affirming the principle recalled above, according to which the number and content of actions are derived from the number and content of the rights in dispute and not vice versa, in keeping with its historical origin and the ancient canonical tradition, considers 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) Cautelary actions. — These are those of sequestration and of denunciation of new work and of feared damage, of which we shall speak under the respective entries (v. DENUNCIA DI NUOVA OPERA; SEQUESTRO).

B) Actions of nullity. — This concerns the nullity of juridical acts in general, in regard to which the code establishes: a) that an act is null only where it lacks one of its essential elements or those formalities or conditions that are 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 on it (can. 1680, § 2); c) that whoever brings about a null act is liable for damages and costs toward the other party (can. 1681); d) that the nullity of an act cannot be declared ex officio except when the public interest requires it or when it concerns the poor, minors or persons equated with them (can. 1682).

C) Rescissory actions. — Whoever was induced by the deceit or grave threats of another to perform an act or to stipulate an intrinsically valid contract may seek and obtain its rescission (can. 1684, § 1). An equal action, to be brought within a term of two years, belongs to whoever, in an onerous contract, has been harmed by error (meaning accidental error, since in the case of substantial error the contract would be null) by more than half in the just price or value of the thing contracted (can. 1684, § 2). The action may be brought both against the author of the deceit or grave fear and against any possessor in good or bad faith, without prejudice to the right of recourse (can. 1685).

D) Action for «restitutio in integrum». — It represents an extraordinary remedy, granted for reasons of natural equity to minors and to those who cannot exercise the rescissory action. It is treated under the entry RESTITUZIONE IN INTERO.

E) Counterclaim. — It is, according to can. 1690, § 1, the action that the defendant brings before the same judge and in the same trial against the plaintiff, for the purpose of removing or diminishing the claim. As appears from this definition, it can be brought only when between the claim of the plaintiff and that of the defendant there can be room for set-off. It may be exercised in any contentious cause, except causes of spoliation (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 even at any other moment of the trial, provided it is before the sentence (can. 1630, § 1).

F) Possessory actions. — Under this name go the actions intended to protect possession, namely: the actio adipiscendae, the actio retinendae and the actio recuperandae possessionis. They will be treated under the entry POSSESSO.

VII. CRIMINAL ACTION

It arises from the violation of a penal norm and consists in the faculty of prosecuting in court the perpetrator of a crime so that the just penalty may be inflicted on him or declared against him. Some authors distinguish the criminal a. from the penal a., which would be directed not at the imposition or the declaration of the penalty, but rather at the execution of the penalty already imposed or declared. But such a distinction does not seem well founded; while it seems clear that by the two expressions actio criminalis and actio poenalis, used from time to time by the CIC in contrast to those of actio contentiosa and actio civilis, the same thing is meant.

The criminal (or penal) a. is distinguished from the contentious (or civil) a. not only by its object, but also by the fact of being public, personal and necessary: public, inasmuch as it tends to the reparation of the mediate harm that the crime causes to society (v. DELITTO); personal, inasmuch as it is directed exclusively at the person of the offender; necessary, inasmuch as, being required by the public interest, it must (albeit with some appropriate tempering) be exercised in every case, nor can it be renounced at the discretion of the parties.

With the distinction of crimes into public and private abolished, and every trace of the ancient a. popularis removed (by which anyone could, as a member of the community, bring delinquents to trial), the canon law in force reserves the exercise of the criminal a. (or accusation) to the promoter of justice alone (can. 1934); saving, of course, to the faithful the faculty, which sometimes becomes an obligation, of denouncing to the same promoter the crimes of which they are aware (can. 1935, §§ 1 and 2; v. DENUNCIA). For the crimes of injury and defamation, as a rule, proceedings cannot be taken without the prior complaint of the injured party (can. 1938, § 1), but this does not serve to change, even in this case, the nature of the criminal a., since, as will be better explained in its place, the complaint (v.), far from being confused with the a., represents simply a condition for its exercise.

The criminal a., in accordance with can. 1702, is extinguished: a) by the death of the accused; b) by pardon on the part of the legitimate authority; c) by prescription. With the exception of crimes within the competence of the Holy Office (such as heresy, schism, apostasy, etc.), the prescriptive periods are established: of one year for injury; of five years for crimes qualified against the sixth and seventh precepts of the Decalogue; of ten years for simony and homicide; of three years for all other offenses (can. 1703). Prescription runs from the date of the crime committed; and if it is a question of a permanent, habitual or continued crime, from the day on which the permanence or continuation ceased (can. 1705, §§ 1-3).

The extinction of the criminal a. does not prevent the exercise of the contentious a. for compensation for the harm caused by the crime (can. 1704, n. 1); nor does it forbid the ordinary from adopting against the guilty party, if 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).

Ferruccio Liuzzi