CONTUMACY. - There is contumacy in a trial whenever one of the parties, contravening the obligation to appear, remains absent and therefore entirely inactive.
As can be seen, this must involve a total abstention of the party from all procedural activity and not any form of partial inactivity - such as, for example, may occur in the case in which a party, after having initially entered an appearance in court, abstains from giving his consent to the formation of certain procedural acts - since in that case the sanctions against the absent party will be the special ones established by the CIC, and one can speak of contumacy only exceptionally, that is, within the limits permitted by the CIC itself (can. 1848).
It is evident that either the plaintiff or the defendant, or both, may be contumacious.
Contumacy is true or fictitious, according as it is voluntary or not.
The contumacy of the plaintiff should in itself be considered more serious than that of the defendant, since it is the plaintiff who brings the action. Nevertheless, the penal sanctions imposed by the CIC for the repression of contumacy concern only the defendant (can. 1845), given that the motive of disobedience to the judge remains characteristically inherent - according to the traditional canonical elaboration of the institution - in the concept of contumacy, and that, from a penal point of view, the disobedience of the defendant assumes greater seriousness under canon law than that of the plaintiff.
The declaration of contumacy is the object of an incidental cause and must be made by the judge at the request of a party, unless it is a question of criminal causes or of causes concerning, in general, the public good. For this kind of cause, in fact, it is made ex officio.
The judge may forthwith declare the contumacy of the defendant when the latter - once he has been legitimately cited - has not, without just cause, appeared in court either in person or through his procurator (can. 1842), or when, during the trial, although he initially appeared, he has taken no interest in the trial itself (can. 1848).
By effect of the declaration of contumacy: 1) no further procedural act will be notified to the defendant; 2) the latter will lose the right of appeal, unless he has purged the contumacy; 3) and moreover (provided he has not purged the contumacy) he must bear the expenses of the acts that were performed on account of his contumacy, even if the plaintiff's claim has been rejected, and must also pay, if the judge deems it appropriate, an indemnity to the other party (can. 1851 § 1).
Contumacy is declared by an interlocutory sentence or by a decree, to be notified to the contumacious party so that he may above all purge the contumacy within the term established for that purpose by the judge. Once the contumacy of the defendant has been declared, the judge will proceed in the trial according to the common procedural norms.
The judge may, however, repress contumacy, rather than by resorting to the procedural remedy of "declaration" with its related consequences, by applying penal sanctions (can. 1845 § 1). This second solution cannot, moreover, be adopted unless a precise condition is met, namely that the citation has been repeated with the express threat of the penalties to which the defendant, by his eventual contumacy, exposes himself (can. 1845 § 2).
After the declaration of his contumacy, the defendant who does not wish to suffer its consequences has two paths left: either that of late appearance or that of the so-called restitutio in integrum ad appellandum.
By means of late appearance, which may take place up to the conclusion of the cause (can. 1846), the defendant takes up the trial in the precise state in which it finds itself. If he then demonstrates that his contumacy was not voluntary, he can obtain that the declaration be revoked in all its effects and therefore that he also be freed from the obligation of the expenses of the acts performed in consequence of his contumacy and be admitted to restitutio in integrum for the procedural acts performed in his absence and from which damage may have derived to him. Likewise he can obtain that the penal sanctions eventually imposed be annulled.
But, as has been said, the defendant who purges the contumacy can be restored in full for the appeal, if the cause has already been decided. It is the judge who pronounced the sentence who orders this special restitutio in integrum, and the relevant term for proposing it is that of three months from the intimation of the sentence.
The plaintiff too can be declared contumacious. However, for this to happen, it is necessary that his citation have been repeated. The law indeed holds the contumacy of the plaintiff to be less probable than that of the defendant, given that the suit was brought by the former and not by the latter.
By effect of the declaration of the plaintiff's contumacy, the latter forfeits the right to pursue the judicial claim, inasmuch as he is presumed to have renounced it, while the promoter of justice or the defender of the bond is granted the faculty of substituting himself for him and thus making the judicial claim his own and pursuing it (can. 1850 § 2), where it is a question of causes concerning the public good. The plaintiff may, however, appear late and a fortiori propose appeal and petition for restitutio in integrum against the sentence (cann. 1846, 1847 and 1849).
The declaration of the plaintiff's contumacy offers the defendant four distinct possibilities: 1) he may ask, in the first place, to be authorized by the judge to withdraw from the trial so that, in this way, the citation loses any effect with regard to him (cann. 1846 and 1847); 2) he may then ask that all the acts performed in the trial be declared null, thus realizing the so-called absolutio ab observantia iudicii; 3) he may moreover ask to be definitively absolved from the plaintiff's claim and thus to provide himself for the future with the exceptio rei iudicatae; 4) he may finally ask that the trial proceed in the normal ways and be concluded with a regular sentence, a solution which is for the most part adopted when the defendant intends to obtain not so much a simple absolutory pronouncement as the judicial recognition of his rights.
Besides the contumacy of one or the other of the parties, there may be the contumacy of both. Then, if the joinder of issue has not taken place, the citation will have no procedural effect, while it will retain its efficacy with regard to the substantive right (cf. can. 1725 n. 4). If, on the other hand, the joinder of issue has already taken place, the process may lapse by effect of peremption, or the contumacy of the parties may forthwith be declared.
When both parties are contumacious, both remain bound in solidum to the expenses of the suit (can. 1851 § 2), while on the other hand each of them may appear late, with the consequences indicated above.
In a notably different sense one speaks of contumacy in criminal law, in the matter of censure (v. CENSURA).
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