Exception

ECCEZIONE.
- There are several meanings of the term e. in procedural law.

In a less broad sense, e. is considered any defense of the defendant 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, e.g., payment having been made.

Finally, in the strict sense, e. is the judicial defense proper of the defendant, when the latter alleges facts and grounds that the judge, as a rule, cannot raise ex officio and that are capable, if not of barring, of nullifying the action (e.g.: prescription, incapacity, etc.).

action (v.) and the corresponding right (e.g., that of prescription), while at other times they eliminate the action without, however, precluding the right (exceptio inadimpleti contractus).

In canonical procedural law, the exception to the exception is also admitted; but even in such a case the e. maintains its autonomy and its own requirements.

Various classifications of exceptions exist. It will suffice here to report the most important.

In the first place, exceptions are substantive (or on the merits) and procedural (or formal), according to whether they concern the substantive relationship or the procedural relationship. They are furthermore absolute or relative, according to whether the title to the relevant right belongs to all parties to a given relationship or to only some of them. Likewise, exceptions are distinguished into peremptory and dilatory, according to whether the action is thereby barred definitively (e.g., the exception of prescription) or only in its present state (e.g., the beneficium excussionis). There is, moreover, the distinction of exceptions into perpetual and temporary. Perpetual are those exceptions that can be raised at any stage of the proceedings; temporary are those that must be raised within a time limit established by law under penalty of forfeiture. Finally, in doctrine one finds the distinction between simple and reconventional exception, according to whether the defendant, in defending himself, remains or does not remain within the scope of the relationship asserted in court by the plaintiff, or in turn becomes a plaintiff against the latter.

With particular regard to procedural exceptions, it may be considered that for these as well the distinction holds between exceptions in the proper sense (in which case they are based on circumstances and grounds that prevent the arising of the procedural relationship) and exceptions in the improper sense (which tend to nullify the constitution of the procedural relationship). As examples of improper procedural exceptions, which the judge may raise ex officio, one may indicate those concerning lack of jurisdiction, functional incompetence, the incurable nullity of the constitutive act of the relationship, and res judicata; examples of proper procedural exceptions are those of territorial incompetence, lis pendens, and peremption.

While the plaintiff cannot bring several actions that are mutually incompatible, the defendant may cumulate exceptions, without their having to exclude one another, even if they are contradictory (can. 1660).

As a rule, in canon law, with regard to the right of action, the Roman law principle of the imprescriptibility of the power of exception applies, in that 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 of admissibility of the exception in the proceedings must always be preserved, from which the bipartite division of exceptions into perpetual and temporary derives its raison d'être. That is, there is always an ordo iudicii that must be observed and that, among other things, as a rule requires dilatory exceptions to be raised and substantiated through evidence prior to the joinder of issue. Peremptory exceptions, on the other hand (except the so-called litis finitae), may be proved after the joinder of issue.

As regards proof, canon law follows the principle (of Roman law) now common, according to which the burden of proving the facts that form the basis of the exception falls on the defendant.

Exceptions are extinguished for various reasons that do not always coincide (as occurs, e.g., in the case where prescription is not mutual) with those that determine the extinction of the action. Among these, the following are to be recalled here: the death of the party entitled to the exception when dealing with actions that are extinguished with the death of the holder, the expiration of the peremptory time limit fixed for raising the exception, and waiver. The latter, in turn, may be express—in the forms and under the conditions established by law (e.g., capacity of the person waiving)—or tacit, such as that inferred from the defendant's procedural conduct, which, e.g., cannot fail to indicate his waiver of a given dilatory exception when he proceeds to the defense on the merits without taking care to raise the said exception.