CONTESTATION OF THE LITIGATION. - The contestation of the litigation (c. of the l.), even in canon law proceedings, is one of the most salient moments of the judgment, since it is through this that the first contradictory exchange between the parties is manifested.
The c. of the l. is defined by the CIC as "formal" with "contradictory exchange carried out before the judge with the intention of litigating" (can. 1726). Its essential elements must therefore be considered: the plaintiff’s claim, the defendant’s denial of the plaintiff’s claim, and the animus litigandi, at least presumed, with which the denial itself must occur.
The c. of the l. is distinguished into special and general. It is special when the defendant opposes his denial to each individual head of the plaintiff’s judicial claim. It is, on the other hand, general when the defendant limits himself to a generic challenge to the entire plaintiff’s claim.
The actual commencement of the litigation occurs through the institution in question, so that it cannot be dispensed with either in contentious or criminal cases. The necessity of the c. of the l. also subsists for both principal actions and counterclaims, as well as for incidental questions (can. 1840 § 2).
In complex cases as referred to in can. 1728, the c. of the l. assumes characteristic aspects and developments, inasmuch as it transforms into the so-called "concordance of the doubt." This, being nothing other than a special form of the c. of the l., is carried out, as is evident, in the same hearing or in a subsequent hearing set for this purpose by the judge. The formula of the doubt is proposed by the party or ex officio, reproduces the essential positions, in fact and in law, of the case, and is determined by the judge with his own decree. The judgment must then provide the answer to the doubt.
Should one or the other of the parties be absent, the judge decrees ex officio that the formula of the doubt be notified by the chancery to the absent party and assigns in the same decree a term to that party, so that it may purge its contumacy (v.) and propose any exceptions against the formula (can. 1729 § 1).
Once the formula has been fixed in the concordance session, it may no longer be modified except by a new decree to be issued by the judge for grave cause at the request of the interested party (who may naturally also be the promoter of justice or the defender of the bond) and not without the judge first having heard all the parties in the case and examined the reasons adduced in support of the request for modification of the formula (can. 1729 § 4; cf. can. 1731 § 1).
Should neither party appear at the hearing set for the concordance of the doubt, the judge must refrain from carrying out the concordance ex officio, and thus the proceedings remain stayed.
The c. of the l. produces procedural and substantive effects. From the procedural standpoint: 1) there is the definitive and irrevocable determination (save as provided by cans. 1729 § 4 and 1671) of the object of the judgment (can. 1726) and of the limits of the judicial claim (can. 1732); 2) there is the preclusion of the exceptions referred to in cans. 1628 and 1629; 3) the formal opening of the instructional period begins (can. 1731 n. 2; cf. cans. 1620 and 1634); 4) the running of the two-year and one-year terms fixed by can. 1620 respectively for the first and second instance of a judgment commences.
Moreover, still from the procedural standpoint, it should be noted that with the c. of the l., in accordance with can. 1664 § 1, any removal by the principal of advocates and procurators that is not notified to the judge and the opposing party is rendered ineffective. Nor should it be forgotten that, pursuant to can. 1730, the judge is empowered to carry out instructional acts even before the c. of the l., should the continuance of a party have already been declared and should it concern securing for future memory proofs that are necessary or at least useful for a judgment that has just begun or is yet to begin.
As for the substantive effects of the c. of the l., they consist: 1) in the correspondence that must exist between the c. of the l. and the judgment, since the judge must decide, in addition to conforming to the libellus, within the limits of the c. of the l. (save as provided by can. 1731 § 1); and 2) in the specific provision of can. 1731 n. 3, whereby the possessor of another’s property ceases, with the c. of the l., to be a possessor in good faith, so that, for the entire duration of the proceedings, his possession becomes illegitimate and, in the event of a judgment ordering restitution of the property, he remains obligated to restore also its fruits from the time of the c. of the l. and to repair any damages.