Exception

EXCEPTION. - The term e. has several meanings in procedural law.

"ECCE HOMO" - Painting by a Flemish artist of the first half of the 17th century - Rome, Galleria Nazionale d'Arte Antica.

A first, very broad meaning obtains when by e. is understood any defensive act of the defendant (v. PROCESSO).

In a less broad sense, every defense of the defendant is considered an e., capable of bringing about the rejection of the plaintiff's claim on the basis of facts that impede or have extinguished the plaintiff's right, such as, for example, payment already made.

Finally, in the strict sense, e. is the defendant's true and proper judicial defense, when the latter alleges facts and grounds that the judge as a rule cannot take into consideration of his own motion and that are capable, if not of excluding, of annulling the action (for example: prescription, incapacity, etc.).

E.'s sometimes destroy the action (v.) and the related right (for example, that of prescription), while sometimes they eliminate the action without however excluding the right (exceptio inadimpleti contractus).

In canonical procedural law the e. of the e. is also admitted; but even in that case the e. retains its autonomy and its own requirements.

The classifications of e.'s are various. It will suffice here to mention the most important ones.

In the first place, e.'s are substantive (or on the merits) and procedural (or of procedure), according as they concern the substantive relationship or the procedural relationship. They are then absolute or relative, according as the ownership of the relevant right belongs to all the parties of a given relationship or to some of them only. Likewise e.'s are distinguished into peremptory and dilatory, according as the action is definitively excluded by them (for example, the e. of prescription) or only in its present state (for example, the beneficium excensionis). There is furthermore the distinction of e.'s into perpetual and temporary. Perpetual are the e.'s that can be raised at any stage of the trial; temporary those that must be raised within a term fixed by law under penalty of forfeiture. Finally, in doctrine there is found the distinction between simple and counterclaim e., according as the defendant, in defending himself, remains or does not remain within the scope of the relationship asserted in court by the plaintiff, or himself becomes plaintiff against the latter.

With special regard to procedural e.'s, it may be held that for these too the distinction holds between e.'s in the proper sense (in which case they are based on circumstances and grounds that impede the birth of the procedural relationship) and e.'s in the improper sense (which tend to annul the constitution of the procedural relationship). As examples of improper procedural e.'s, which the judge can take into consideration of his own motion, one may indicate those concerning the lack of jurisdiction, functional incompetence, the incurable nullity of the act constituting the relationship, and res judicata; examples of proper procedural e.'s are those of incompetence by territory, of lis pendens and of peremption.

While the plaintiff cannot bring several actions that are incompatible with one another, the defendant can cumulate e.'s, without these having to exclude one another, even if they are conflicting (can. 1660).

As a rule, in canon law the Romanistic principle of the imprescriptibility of the power of e. holds with regard to the right of action, inasmuch as the defendant, for the exercise of this power of his, depends on the will of the plaintiff ("temporalia ad agendum perpetua sunt ad excipiendum"). However, the criteria for the admissibility of the e. in the process must always be preserved, from which the bipartition of e.'s into perpetual and temporary draws its own reason for being. There is, that is, always an ordo iudici that must be respected and that, among other things, imposes as a rule the raising and evidentiary support of dilatory e.'s before the joinder of issue. Peremptory e.'s, on the other hand (except those so-called litis finitae), can be proved after the joinder of issue.

As regards proof, canon law follows the (Roman-law) principle that is by now common, according to which the burden of proving the facts that form the basis of the e. lies on the defendant.

E.'s are extinguished for various reasons that do not always coincide (as happens, for example, in the case in which prescription is not common) with those that determine the extinction of the action. Among them are to be remembered here: the death of the person entitled to the e., where the matter concerns actions that are extinguished by the death of the holder, the expiry of the peremptory term fixed for the raising of the e., and waiver. The latter, in turn, can be express - in the forms and under the conditions established by law (for example, capacity of the person waiving) - and tacit, that is, such as is inferred from the procedural conduct of the defendant, who, for example, cannot but be held to have waived a given dilatory e. when he descends to the defense on the merits without taking care to raise the said e.

Fernando Della Rocca