CONTESTATION OF THE SUIT. — The contestation of the suit, also in canonical procedure, is one of the most salient moments of the trial, since it is through this that the first adversarial exchange between the parties is manifested.
The contestation of the suit is defined by the CIC as «formalis conventi contradictio petitioni actoris facta animo litigandi coram iudice» (can. 1726). Its essential elements are therefore to 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 be made.
The contestation of the suit is distinguished as 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 contrary, general when the defendant limits himself to generally contesting the entire plaintiff’s claim.
The true and proper beginning of the suit takes place through the institution in question, so that it cannot be dispensed with either in contentious or in criminal cases. The necessity of the contestation of the suit exists, moreover, both for principal actions and for counterclaims and incidental questions (can. 1840 § 2).
In simpler cases, however, the contestation of the suit has today practically been reduced to an act which, even though involving a disagreement between the parties, confirms the elements contained in the summons.
The contestation of the suit is carried out at the hearing appointed for this purpose by the judge or by the presiding judge of the panel where the judge is collegiate (can. 1727; cf. Regulae Rotae, § 32). At it the defendant must propose, under penalty of forfeiture, dilatory exceptions, especially procedural ones (can. 1628 § 1), and peremptory exceptions litis finitae (can. 1629 § 1); the parties must also generally propose every application and question possibly concerning security for judicial expenses and legal aid. The judge then determines the subject matter of the suit in relation to the disagreement expressed regarding it by the parties.
In the complex cases referred to in can. 1728, the contestation of the suit assumes characteristic aspects and developments, since it is transformed into the so-called «concordance of the doubt». Since this is nothing other than a special form of the contestation of the suit, it is evidently carried out at the same hearing or at a subsequent hearing appointed for this purpose by the judge. The formula of the doubt is proposed by a party or ex officio, reproduces the essential positions, in fact and in law, of the case, and is determined by the judge by decree. The judgment must then answer the doubts.
If either party is contumacious, the judge decrees ex officio that the formula of the doubt be notified by the chancery to the contumacious party and assigns the latter, in the same decree, a period contumacy (v.) and to propose any exceptions against the formula (can. 1729 § 1).
Once fixed in the concordance, the formula itself may no longer undergo modifications except by a new decree to be issued by the judge ex grati causa at the application of the interested party—which may naturally also be the promoter of justice or the defender of the bond—and only after the judge himself has heard all the parties to the case and examined the reasons advanced in support of the application for modification of the formula (can. 1729 § 4; cf. can. 1731 § 1).
If neither party appears at the hearing appointed for the concordance of the doubt, the judge must refrain from carrying out the concordance ex officio, and the proceedings therefore remain suspended.
The contestation of the suit produces procedural and substantive effects. From the procedural point of view: 1) there is the definitive and irrevocable determination—subject to the provisions of cann. 1729 § 4 and 1671—of the subject matter of the trial (can. 1726) and of the limits of the judicial application (can. 1732); 2) the exceptions referred to in cann. 1628 and 1629 are thereafter barred; 3) the evidentiary stage formally begins (can. 1731 no. 2; cf. cann. 1620 and 1634); 4) the running begins of the periods of two years and one year established by can. 1620 respectively for the first and second instance of a trial.
Moreover, still from the procedural standpoint, it should be noted that, by virtue of can. 1664 § 1, the possible removal by the principal of advocates and procurators has no effect unless it is notified to the judge and to the opposing party. Nor should it be forgotten that, under can. 1730, the judge is empowered to carry out evidentiary acts even before the contestation of the suit if the contumacy of a party has already been declared and if it is a question of preserving ad futuram memoriam evidence necessary, or at least useful, for a trial that has just been initiated or is still to be initiated.
As regards the substantive effects of the contestation of the suit, they consist: 1) in the correspondence that must exist between the contestation of the suit and the judgment, since the judge must decide not only in conformity with the petition but also within the limits of the contestation of the suit—subject to the provisions of can. 1731 § 1—and 2) in the specific fact provided for by can. 1731 no. 3, whereby the possessor of another’s property ceases, upon the contestation of the suit, to be a possessor in good faith, so that throughout the duration of the proceedings his possession becomes unlawful and, if he is ordered to restore the property, he is also bound to restore its fruits from the moment of the contestation of the suit and to compensate for the damages.