CONTUMACY. — Contumacy in a trial occurs whenever one of the parties, in violation of the obligation to appear, remains absent and thus entirely inactive.
As can be seen, this must involve a complete abstention by the party from any procedural activity, not merely a partial inactivity—such as may occur when a party, after initially entering the proceedings, refrains from consenting to the formation of certain procedural acts—since in such a case the sanctions imposed on the absent party will be those specifically established by the Code of Canon Law, and contumacy may be spoken of only exceptionally, within the limits permitted by the same Code (can. 1848).
It is evident that both the plaintiff and the defendant, or both, may be in a state of contumacy.
Contumacy is either real or fictitious, depending on whether it is voluntary or not.
The contumacy of the plaintiff ought, in itself, to be considered more serious than that of the defendant, since it is the plaintiff who initiates the lawsuit. Nevertheless, the penal sanctions prescribed by the Code of Canon Law for the repression of contumacy apply only to the defendant (can. 1845), given that the reason for disobedience to the judge remains characteristically inherent—in accordance with traditional canonical elaboration of the institution—in the very concept of contumacy, and that, from a penal perspective, the defendant’s disobedience assumes, in canon law, a greater gravity than that of the plaintiff.
The declaration of contumacy is the subject of an incidental matter and must be made by the judge upon the request of a party, unless the case is a criminal one or concerns, in general, the public good. In such cases, the declaration is made *ex officio*.
The judge may declare the defendant to be in a state of contumacy when the latter—after having been lawfully summoned—fails to appear in court without just cause, either in person or through a procurator (can. 1842), or when, during the trial, although initially present, the defendant has withdrawn from the proceedings (can. 1848).
Upon the declaration of contumacy:
1) no further procedural acts shall be notified to the defendant;
2) the latter shall lose the right to appeal, unless the contumacy is purged;
3) and furthermore (unless the contumacy is purged), the defendant shall bear the costs of the acts performed due to the contumacy, even if the plaintiff’s claim is rejected, and shall also pay compensation to the other party, if the judge deems it appropriate (can. 1851 § 1).
Contumacy is declared by interlocutory judgment or by decree, to be notified to the contumacious party so that he may, above all, purge his contumacy within the term established by the judge. Once the defendant’s contumacy has been declared, the judge shall proceed with the trial according to the ordinary procedural norms.
The judge may, however, repress contumacy not by resorting to the procedural remedy of “declaration” with its attendant consequences, but by imposing penal sanctions (can. 1845 § 1). This second solution may, however, be adopted only if a precise declaration is made, namely, that the summons has been repeated with an express warning of the penalties to which the defendant, in the event of contumacy, would expose himself (can. 1845 § 2).
After his contumacy has been declared, the defendant who does not wish to suffer its consequences has two courses open to him: either that of late appearance or that of the so-called *restitutio in integrum ad appellandum*.
By means of late appearance, which may occur up to the conclusion of the case (can. 1846), the defendant re-enters the proceedings at the precise stage they have reached. If he then demonstrates that his contumacy was not voluntary, he may obtain that the declaration of contumacy be revoked in all its effects, and thus be relieved of the obligation to bear the costs of the acts performed due to his contumacy, and be admitted to *restitutio in integrum* with regard to the procedural acts performed in his absence from which he may have suffered harm. Likewise, he may obtain the annulment of any penal sanctions that may have been imposed.
As has been said, the defendant who purges his contumacy may be granted *restitutio in integrum* with regard to the appeal, if the case has already been decided. It is the judge who delivered the judgment who grants this special *restitutio in integrum*, and the term for proposing it is three months from the notification of the judgment.
The plaintiff too may be declared to be in a state of contumacy. For this to occur, however, it is necessary that he be summoned again. The law indeed considers the plaintiff’s contumacy to be less probable than that of the defendant, since it is the former who initiated the lawsuit.
Upon the declaration of the plaintiff’s contumacy, he forfeits the right to pursue the judicial claim, inasmuch as it is presumed that he has renounced it, while the promoter of justice or the defender of the bond is granted the faculty to substitute for him and thus take up and pursue the claim (can. 1850 § 2), where the case concerns the public good. The plaintiff may, however, appear late and, *a fortiori*, lodge an appeal and a petition for *restitutio in integrum* against the judgment (can. 1846, 1847, and 1849).
The declaration of the plaintiff’s contumacy offers the defendant four distinct possibilities:
1) he may, in the first place, ask the judge to be authorized to withdraw from the proceedings so that the summons loses all efficacy with regard to him (can. 1646 and 1647);
2) he may then ask that all the acts performed in the proceedings be declared null, thus achieving what is known as *absolutio ab observantia iudicii*;
3) he may further ask to be definitively absolved from the plaintiff’s claim and thus secure for himself, in the future, the benefit of the *exceptio rei iudicatae*;
4) finally, he may ask that the proceedings continue in the normal manner and be concluded with a regular judgment—a solution that is most often adopted when the defendant intends not merely to obtain a simple declaratory judgment of acquittal but the judicial recognition of his own rights.
In addition to the contumacy of one or the other of the parties, there may be the contumacy of both. In such a case, if the joinder of issue has not yet occurred, the summons shall have no procedural effect, while it shall retain its efficacy with regard to substantive law (cf. can. 1725 n. 4). If, however, the joinder of issue has already occurred, the proceedings may lapse by virtue of peremption or the contumacy of the parties may be declared outright.
When both parties are in a state of contumacy, they are both jointly and severally liable for the costs of the suit (can. 1851 § 2), while, on the other hand, each of them may appear late, with the consequences indicated above.
The term “contumacy” is used in a significantly different sense in penal law, in matters of censure (v. CENSURA).
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