ACTION. — In Roman law, this word (Lat. actio) originally served to denote any act performed in a lawsuit; later, under the formulary procedure, it was used as a synonym for legal claim and even for subjective right; and only in the time of Justinian did it assume the meaning, which still belongs to it today, of the right to obtain through judgment what is owed to us (ius persequendi iudicio quod sibi debetur: Inst., IV, 6, pr.).
OUTLINE: I. Nature of the action — II. Categories of actions — III. Elements and conditions of the action — IV. Concurrence and cumulation of actions — V. Extinction of actions — VI. Certain particular actions — VII. Criminal action.
I. NATURE OF THE ACTION
While modern writers are unanimous regarding the specific purpose of the action, which consists in securing through the intervention of the magistrate the enforcement of the will of the law, the same cannot be said with regard to its intrinsic nature. The theories of those who saw in the action a mere aspect or manifestation of life, or a means of defense, or a particular function of the subjective right (Windscheid, Puchta, Coviello and, among canonists, Wernz-Vidal) have been rejected. The doctrine now prevailing considers the action as a right in itself. But what kind of right is it? 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 the law to produce certain legal effects (Chiovenda, Calamandrei). According to some, it is a right against the State or, in any case, against public authority, inasmuch as its object is legal protection, which can be pursued only through the activity of 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, which belongs solely to him who is right in the field of substantive law (Wach, Chiovenda); according to others, it is an abstract right, inasmuch as it disregards whether the claim which the plaintiff seeks to enforce is well-founded or not (Bülow, Mortara).Without entering into a thorough examination of the various conflicting theories, and referring mainly to the criteria followed by ecclesiastical legislation, we limit ourselves to affirming, following F. Roberti (De processibus, I, 2nd ed., Rome 1941, p. 68), that the action is distinctly separate from the disputed right: yet not to the point of being entirely severed 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 viewpoint is fully consistent with the system of the CIC; which, by providing in can. 1667: “Every right... is protected by an action, unless otherwise expressly provided,” and by enumerating in can. 1511, § 1 among the goods of the Apostolic See “rights and actions, whether personal or real,” shows most clearly that it distinguishes the two concepts of right and action. This distinction is further confirmed by 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 those under or tolerated excommunication after a condemnatory or declaratory sentence (can. 1654, § 1).
But, conversely, are there actions which do not have as their natural presupposition a right? The affirmative opinion, supported by authoritative secular proceduralists such as Chiovenda, who include in this particular category the so-called actions for mere declaration and those aimed at obtaining precautionary measures (sequestration, denunciation of new work, and the like), may easily be understood if the term “right” is taken to mean subjective right in the strict sense, i.e., a faculty to which corresponds a specific obligation on the part of the person against whom the action is brought; but it does not seem acceptable in absolute terms, especially if reference is made to the law of the Church. Indeed, even those actions which at first glance appear perfectly autonomous and independent derive their origin and justification from the necessity of ensuring the satisfaction of a legal interest or the defense against a mere danger; that is, of protecting a right, which may not be expressly sanctioned by a specific substantive norm, as often happened with so-called natural rights, but which for that very reason is no less an authentic and identifiable right.
II. CATEGORIES OF ACTIONS
The numerous and subtle distinctions introduced by Roman law, in keeping 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 adopted without reservation by canon law; indeed, following the system of modern civil codes, it soon warned jurists against an excessive attachment to the names by which actions were wont to be distinguished (cf. c. 6, X, de iudiciis, II, 1). For canon law—as for secular law—actions are all those norms which can be enforced (can. 1667). Thus, although certain typical Roman designations (such as rei vindicatio, actio ad exhibendum, nunciatio novi operis, etc.) are reproduced in the Codex, and although 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 all traces of ancient forms or for reasons of technical convenience, but not on account of substantive requirements.This does not, however, prevent actions from being divisible today, according to the criteria established by centuries-old doctrine, into various, more or less broad, categories.
The first and fundamental distinction is that between contentious action and criminal action: the former aimed at the defense of the rights of individuals (whether natural or juridical persons) as well as the ascertainment of the legal facts concerning them; the latter directed toward the restoration of social order through the repression of crimes (cf. can. 1552, § 2, nn. 1–2). On account of the special place occupied by criminal action in the system of procedural law, we deem it appropriate to treat it in a separate paragraph, while what has been said so far and what will immediately follow refers mainly to contentious action.
According to the nature of the rights which they are called upon to protect, actions are divided into: personal and real (whether there exist mixed actions, having as their object at one and the same time the defense of personal and real rights, is a matter of controversy in doctrine); immovable and movable; petitory and possessory. Petitory actions are those through which one seeks to achieve 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 state of fact (cf. can. 1668).
According to the nature of the judicial measures that form the immediate object of actions, they are distinguished as follows: a) the action of condemnation, aimed at obtaining a judgment that, based on a precise legal norm, compels the defendant to perform an obligation towards the plaintiff; b) the declaratory action, aimed at obtaining a judgment that affirms or denies the existence of a specific legal relationship or fact (such as, for example, an action for the nullity of a marriage or of another contract); c) the constitutive action, which aims to obtain, through the judge’s ruling, the creation of a new legal relationship or the termination of a pre-existing one (e.g., the action for restitutio in integrum [can. 1687–89], the action for revocation of a mandate [can. 1664], the action for personal separation of spouses [can. 1129–31], etc.). To these may be added: the summary action, which aims to secure the enforcement of the law through proceedings with a predominantly executive function (cf. for the granting of provisional enforceability of judgments, can. 1917, § 2); the precautionary or conservatory action, which aims to secure the enforcement of the law through precautionary or provisional measures (such as the action for sequestration and the action for denunciation of new works or feared damage); the executive action, which aims to secure the enforcement of the law through executive measures (cf. can. 1918–24).
Other distinctions established by usage are those between transmissible and intransmissible actions, prescriptible and imprescriptible actions, principal and accessory actions, public and private actions; whereas no trace remains in current laws and practice of certain categories derived from Roman law, such as the actions *honoraria*, *directa*, *utilis*, *strictis iuris*, *bonae fidei*, etc.
III. ELEMENTS AND CONDITIONS OF THE ACTION
In every action, the following three elements can be identified: a) the parties, namely the person to whom the right to act belongs (the active party) and the person against whom this right may be exercised (the passive party); b) the cause, that is, the legal fact upon which the action is based and which generally consists in turn of two elements: a right, and a state of fact contrary to the right (the *causa petendi*); c) the object, consisting in the legal good to which the power of action is directed (the *petitum*). The immediate object is the judge’s ruling through which the will of the law is enforced (a judgment of condemnation or declaration, a decree of provisional execution, etc.); the mediate object is the good whose attainment is coordinated with the enforcement of the law (e.g., a sum of money to be paid, the status of spouse, etc.).In identifying the parties, regard must be had to their legal identity rather than to their physical identity, and it must be borne in mind that the parties to the action do not always correspond to the parties to the substantive legal relationship (as occurs, for example, in various cases of procedural substitution).
Regarding the *causa petendi*, it should be noted: 1) that it must not be confused with the claim, of which it is nonetheless an element; 2) that the legal fact must be considered in its entirety, independently of the simple facts or motives that may be included therein; hence there is no change in the *causa petendi* if, for example, the defect of matrimonial consent on the ground of force and fear, initially alleged in the suit as arising from threats of death, is later shown to have stemmed from reverential fear; 3) that the legal characterization of the fact does not affect the identification of the *causa petendi*, in the sense that as long as the fact remains unchanged, it matters little under which legal norm it may fall; 4) that in real actions of condemnation the *causa petendi* is always and solely the right of ownership, irrespective of the mode of acquisition by which this right was established.
Finally, with regard to the mediate object of the action, it should be observed that in determining it, regard must be had to its legal quality rather than to its material quality, and that it does not change when it is replaced by an object that stands in a part-to-whole relationship with the previous one.
The conditions of the action, namely the necessary conditions for obtaining a favorable ruling from the judge, must not be confused with the elements just mentioned. These conditions are: the actual existence of a right to be asserted; the standing and legitimacy to act; and the interest in acting.
The existence of the right presupposes, even before the existence of a fact or series of facts (e.g., repeated threats of death in relation to the celebration of a marriage), the existence of a legal norm (e.g., can. 1087, § 1) which, based on those facts, guarantees a certain good or attaches a specific legal consequence thereto (e.g., the invalidity of the marriage).
By standing or legitimacy to act (*legitimatio ad agendum*) is meant the identity of the plaintiff with the person to whom the law grants the right to bring the action in the particular case (active legitimacy) and the identity of the defendant with the person against whom the action is brought (passive legitimacy). Distinct from *legitimatio ad causam* is *legitimatio ad processum*, that is, the capacity to be, in general, a subject of a procedural legal relationship (v. *Capacità giuridica*); but this distinction is not recognized by the CIC, where both concepts are designated by the generic expression *persona standi in iudicio* (cf., e.g., can. 1652, 1654, 1892 n. 4).
The interest in acting is often described as “the measure of the action” and is identified not so much with the interest in obtaining the good guaranteed by the 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 does not contain a general norm that explicitly treats interest as an indispensable condition for the exercise of the action; yet this does not negate that the canonical procedural system also recognizes its necessity.
IV. CONCURRENCE AND CUMULATION OF ACTIONS
The examination of the three elements mentioned in the preceding paragraph (parties, cause, and object) provides an easy and reliable criterion for the identification of actions. Actions are indeed to be deemed identical if they share all the elements; whereas the difference in even one of them produces diversity of actions.Different actions may concur or cumulate.
There is concurrence of actions: a) when, although the parties are different, the actions aim at the same thing (cf., e.g., can. 1534, § 2, whereby against the invalid alienation of ecclesiastical goods, the alienator, their superior, and even individual clerics attached to the church may 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 aim at different but coordinated performances for a single economic purpose (e.g., restitution of a thing and payment of its price; rescission of a contract and compensation for damages); c) when the actions differ solely in their *causa petendi* (e.g., petitory and possessory actions; a personal action against the seller for the delivery of a thing and a real action concerning the thing sold).
There is cumulation of actions when different actions are brought in the same proceeding. The cumulation is subjective if several persons act against the same defendant (joinder of plaintiffs) or if one person acts against several defendants (joinder of defendants) or if several persons act against several defendants (mixed joinder); 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. 1660, § 1) provided that the limits of the competence of the court seized are respected and that the different actions are not mutually incompatible (as would be the case, for example, if in the same proceeding the nullity of a marriage were alleged both on the ground of force and fear and on the ground of insanity).
Petitory and possessory actions may be joined in a single instance (can. 1670, § 1), unless the opposing party raises the exception of dispossession; moreover, the plaintiff is permitted, before the conclusion of the case (and even afterward, if the judge deems it appropriate), to switch from a petitory to a possessory action (can. 1671, §§ 1 and 2).
V. EXTINCTION OF ACTIONS
It is natural that, once the right which constitutes the presupposition of the action is extinguished for any reason (payment, set-off, transaction, confusion, etc.), the action itself is also extinguished. But, in addition to this, actions may be extinguished by 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 norms of the civil legislation in force in individual countries, though imposing some notable limitations.VI. ON CERTAIN ACTIONS IN PARTICULAR
While the Code of Canon Law affirms the principle mentioned 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, it nevertheless, in keeping with its historical origin and ancient canonical tradition, treats separately in the book on procedure and under the title *De actionibus et exceptionibus* (can. 1672–1700) the following actions, derived from Roman law:A) **Cautelary actions.** — These are the actions for sequestration and for the denunciation of new work and feared damage, which will be discussed under their respective headings (v. DENUNCIA DI NUOVA OPERA E DI DANNO TEMUTO; SEQUESTRO).
B) **Actions of nullity.** — These concern the nullity of judicial acts in general, regarding which the Code establishes: a) that an act is null only if it lacks any of its essential elements or those formalities or conditions which the law requires under pain of nullity (can. 1680, § 1); b) that the nullity of an act does not entail the nullity of preceding or subsequent acts which do not depend on it (can. 1680, § 2); c) that whoever performs a null act is liable for damages and costs to the other party (can. 1681); d) that the nullity of an act cannot be declared *ex officio* unless public interest so requires or the case involves the poor, minors, or persons equated to them (can. 1682).
C) **Rescissory actions.** — One who has been induced by another’s fraud or grave threats to perform an act or enter into a contract intrinsically valid may seek and obtain its rescission (can. 1684, § 1). A similar action, to be brought within two years, is available to one who, in an onerous contract, has been injured by error (understood as accidental error, since in the case of substantial error the contract would be void) beyond half the just 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, whether in good or bad faith, subject 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 who cannot exercise a rescissory action. It is treated under the heading RESTITUZIONE IN INTERO.
E) **Reconventional actions.** — According to can. 1690, § 1, this is the action that the defendant brings before the same judge and in the same proceedings against the plaintiff, for the purpose of removing or diminishing the claim. As appears from this definition, it is admissible only when the plaintiff’s claim and that of the defendant are susceptible of set-off. It may be brought in any cause or must be proposed 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 it is before judgment (can. 1630, § 1).
F) **Possessory actions.** — Under this name are included the actions intended to protect possession, namely: the *actio adipiscendae*, the *actio retinendae*, and the *actio recuperandae possessionis*. These will be discussed under the heading POSSESSO.
VII. CRIMINAL ACTIONS. — Arises from the violation of a penal norm and consists in the faculty of prosecuting in court the author of a delict so that a just penalty may be imposed or declared against him. Some authors distinguish criminal action from penal action, the latter being directed not to the imposition or declaration of a penalty but to the execution of a penalty already imposed or declared. But this distinction does not seem well founded; it is rather clear that with the two expressions *actio criminalis* and *actio poenalis*, used alternately in the CIC in contrast to *actio contentiosa* and *actio civilis*, the same thing is intended.
Criminal (or penal) action is distinguished from contentious (or civil) action not only by its object but also by the fact that it is public, personal, and necessary: public, inasmuch as it aims at repairing the indirect damage which the delict causes to society (v. DELITTO); personal, inasmuch as it is directed exclusively against the person of the delinquent; necessary, inasmuch as, being required by the public interest, it must (with some appropriate moderation) be pursued in every case, and cannot be waived at the discretion of the parties.
With the abolition of the distinction between public and private delicts and the removal of all trace of the ancient popular action (by which anyone, as a member of the community, could prosecute delinquents), current canon law reserves the exercise of criminal (or penal) action solely to the Promoter of Justice (can. 1934); though, of course, the faithful retain the faculty—which sometimes becomes an obligation—of denouncing delicts of which they are aware to the same Promoter (can. 1935, §§ 1 and 2; V. DENUNCIA). For delicts of injury and defamation, proceedings cannot, as a rule, be instituted without the prior complaint of the injured party (can. 1938, § 1); yet this does not alter, even in this case, the nature of criminal action, since—as will be explained more fully in its proper place—the complaint (*querela*) (v.), far from being confused with the action itself, merely represents a condition for its exercise.
Criminal action, according to can. 1702, is extinguished: a) by the death of the offender; b) by pardon granted by the competent authority; c) by prescription. With the exception of delicts within the competence of the Supreme Tribunal of the Apostolic Signatura (such as heresy, schism, apostasy, etc.), the following prescription periods are established: one year for injury; five years for qualified delicts against the sixth and seventh precepts of the Decalogue; ten years for simony and homicide; three years for all other offenses (can. 1703). Prescription runs from the date of the delict; and if the delict is continuous, habitual, or permanent, from the day on which the continuity or permanence ceases (can. 1705, §§ 1–3).
The extinction of criminal action does not prevent the exercise of a contentious action for compensation for the damage caused by the delict (can. 1704, n. 1); nor does it bar the ordinary from imposing, if the offender is a cleric, the disciplinary measures of exclusion from promotion, prohibition from exercising sacred ministry, or removal from office (can. 1704, n. 2, and 2222, § 2).