CONTESTATION OF THE SUIT. - The c. of the s., even in the canonical process, is one of the most salient moments of the trial, inasmuch as it is through it that the first adversarial exchange of the parties is manifested.
The c. of the s. 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 that denial must take place.
The c. of the s. 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 impugning the entire plaintiff's claim generically.
The true and proper beginning of the suit occurs through the institution in question, so that it cannot be dispensed with either in contentious causes or in criminal ones. The necessity of the c. of the s. further subsists as much for the principal actions as for counterclaims and incidental questions (can. 1840 § 2).
In simple causes, however, the c. of the s. has today practically been reduced to being an act which, albeit in the contest between the parties, confirms the elements contained in the summons.
The c. of the s. is carried out at the hearing set for that purpose by the judge or by the presiding judge of the panel where a collegiate judge is involved (can. 1727; cf. Regulae Rotae, § 32). At it, the dilatory exceptions, especially procedural ones (can. 1628 § 1), and the peremptory exceptions litis finitae (can. 1629 § 1) must be proposed by the defendant, under penalty of forfeiture, and every request and question concerning possibly the security for judicial expenses and free legal aid must likewise be proposed by the parties in general. Then the judge determines the object of the suit in relation to the disagreement manifested on it by the parties.
In the complex causes referred to in can. 1728, the c. of the s. assumes characteristic aspects and developments, inasmuch as it is transformed into the so-called "agreement on the doubt." This, being nothing other than a special form of the c. of the s., is effected, as is evident, at the same hearing or at a subsequent hearing set for that 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 cause, and is determined by the judge by his own decree. The sentence must then give the answer to the doubts.
If one or the other of the parties is contumacious, the judge decrees ex officio that the formula of the doubt be notified by the chancery to the contumacious party and assigns in the same decree to the latter a term, so that he may see to purging his contumacy (v.) and to proposing any exceptions against the formula (can. 1729 § 1).
The formula itself, once fixed in the session of agreement, can no longer undergo modifications except by a new decree to be issued by the judge ex gratia causa at the request of the interested party (which can naturally also be the promoter of justice and the defender of the bond) and not without the judge himself having first heard all the parties to the cause and having examined the reasons adduced in support of the request for modification of the formula (can. 1729 § 4; cf. can. 1731 § 1).
If none of the parties appears at the hearing set for the agreement on the doubt, the judge must refrain from carrying out the agreement itself ex officio, and therefore the process remains at a standstill.
The c. of the s. produces procedural and substantive effects. From the procedural point of view: 1) there is the definitive and irrevocable determination (save as provided by cann. 1729 § 4 and 1671) of the object of the trial (can. 1726) and of the limits of the judicial instance (can. 1732); 2) there is the preclusion of the exceptions referred to in cann. 1628 and 1629; 3) the evidentiary period is formally opened (can. 1731 n. 2; cf. cann. 1620 and 1634); 4) the running of the terms of two years and of one year fixed by can. 1620 respectively for the first and for the second instance of a trial begins.
Furthermore, still on procedural ground, note that with the c. of the s. there remains, in accordance with can. 1664 § 1, without effect any removal by the principal of advocates and procurators that is not notified to the judge and to the opposing party. Nor should it be forgotten that the judge, by can. 1730, is given the faculty of carrying out evidentiary acts even before the c. of the s. where the contumacy of a party has already been declared and where it is a matter of securing ad futuram memoriam evidence necessary or at least useful for a trial that has just been begun or that is still to be begun.
As for the substantive effects of the c. of the s., they consist: 1) in the correspondence that must exist between the c. of the s. and the sentence, given that the judge must decide, besides in conformity with the libellus, within the limits of the c. of the s. (save as provided by can. 1731 § 1) and 2) in the specific fact provided by can. 1731 n. 3, whereby the possessor of another's thing ceases, with the c. of the s., to be a possessor in good faith, so that, for the entire duration of the process, his possession becomes unlawful and, in the event of a condemnation to restore the thing, he remains obliged to restore also its fruits from the moment of the c. of the s. and to repair the damages.
Bibliography5 works
Fernando Della Rocca