Sentence

SENTENCE. - It is the juridical act by which a lawsuit is concluded that has not ceased for other reasons (prescription, renunciation, settlement); it is defined by the CIC as « legitima pronuntiatio qua iudex causam a litigantibus propositam et iudiciali modo pertractam definit » (can. 1868 § 1).

Sentences, with respect to their content, are on the merits or on procedure, according as they define the lawsuit as regards what constitutes the object of the substantive legal relationship therein stated, or resolve questions of a procedural character. The sentence, moreover, will be definitive if it resolves the principal cause either by denying the existence of one or more procedural prerequisites or by means of examination of the merits, and will instead be interlocutory if it affirms the existence of necessary procedural prerequisites or resolves an incidental cause arising during the course of the principal cause. In turn the interlocutory sentence can be either simple or mixed, or having the force of a definitive sentence, according as it limits itself to resolving the incident while leaving unprejudiced the positions and developments of the principal cause, or alters them in such a way as practically to exclude the definitive sentence (this is the case with every interlocutory pronouncement that, for example, establishes the existence of procedural prerequisites or the existence of defects in the constitution of the process, or litispendence) or prejudices it in the sense that it necessarily determines its content (which occurs when, for example, by an interlocutory sentence the age is established in a matter of restitutio in integrum). This last distinction has practical importance: a) because the judge may, before the principal cause is finished, correct or modify only interlocutory sentences, even if having the force of definitive sentences, and not definitive ones, save in the case of can. 1878, on the instance of a party or, after hearing the parties, ex officio; b) because appeal against interlocutory sentences is granted only in respect of those having the value of a definitive sentence (can. 1880 n. 6). With respect, then, to the action, sentences are distinguished into condemnatory, which issue any condemnation of one or more parties in favor of others, declaratory, which limit themselves to pronouncing a mere ascertainment of right in favor of one or more parties and to the prejudice of others, and constitutive, by which juridical situations are changed or created, from which new relationships of substantive law arise in favor of one or more parties. The sentence, lastly, is just or unjust (or legitimate or illegitimate) according as it conforms or not to the laws, and valid or invalid (or vitiated) according as it is complete or not in all its substantial elements.

No judge must issue the sentence without having first acquired iusta acta et probata and, through the free evaluation (that is, which he will make according to his own conscience) or obligatory evaluation (where, that is, he must follow criteria pre-established by law) of the evidentiary results, by his own intimate conviction, moral certainty as to what must be the object of the sentence itself (can. 1869 § 1). When the moral certainty required by law could not be attained, whether because of doubts of law, that is, inherent in the law to be applied, or because of doubts of fact, concerning the case, the judge, where for the former some general principles of presumption proper to canon law are not applicable («de iure divino et humano melior est condicio possidentis, in dubio pro reo quia nemo praesumitur esse malus, in dubio pro matrimonio, etc.» cf.: cann. 1014, 1127, 1869 § 4, 1677 § 2, 2233) and for the latter the supplementary proofs (suppletory oath, expert clarifications) have not proved sufficient, will decide the cause on the merits by declaring that the right of the plaintiff does not appear to him and dismissing the defendant from the trial. When the cause must be decided by a collegiate judge, then the moral certainty that each member of the college is obliged to acquire before expressing his own judgment on the definition of the cause must be translated into the deliberation reproducing the will of the college, and for this the law establishes the criterion of the absolute majority of votes (can. 1577 § 1); if however there is exceptionally a judging college composed of an even number of members and no majority is formed, the cause will be decided according to the general criterion actore non probante reus absolvitur, unless the Ordinary believes he should replace the judges.

As regards the manner of proceeding in the deliberation of the sentence, the CIC requires that it be reached as soon as the discussion has been closed; but it does not exclude that, when the cause is considered complex, it may itself allow an interval of time, more or less long according to the cases, to elapse between the final moment of the discussion and that of the deliberation (can. 1870). If the judge is collegiate, the president of the college fixes the place (which will as a rule be the seat of the tribunal [can. 1636]), the day and the hour at which the members of the college must assemble to issue the deliberation. At this meeting the individual judges will participate, each furnished with his written conclusions as well as the written reasons on which they rest; which conclusions will then be kept sub secreto together with the acts of the cause. At the meeting a reading will be given of these conclusions in order according to precedence, so that it must always begin with the ponens or relator of the cause, and a moderate discussion must be held under the direction of the president of the college, in the course of which it is naturally permitted to the judges to modify their opinion (can. 1871 §§ 2, 3, 4; cf. Regulae Rotae § 178). If the discussion is not exhausted on the established day, or if it is in any case useful to continue it on another day, the judges may postpone the deliberation, provided the postponement is not of more than a week (can. 1871 § 5, and for the Rota, loc. cit., 31 § 4). Every unjustified postponement of the deliberation of the cause could indeed give rise to the recourse of which can. 1625 treats.

The sentence must, in its content, first of all define the controversy and to that end absolve or condemn the defendant or declare the rights in controversy (can. 1873 § 1) in relation to the libellus, to the litis contestatio, to the changes of that libellus and to the incidental questions that may have arisen in the course of the trial as well as to the causes connected with the principal cause. The sentence must moreover specify in determinate form (that is, not alternative, unless special provisions of law admit an alternative sentence) and absolute (that is, not conditional, unless it is a matter of a condition of an act such as not to require a further cognition: for example, a decisive oath), besides the terms of the coercive execution to which the losing party is obliged by it, also in relation to the accessories of the principal claim, the conditions of time and place in which the execution itself must take place (can. 1873 § 1, n. 2). The sentence must be motivated with the enunciation of the reasons of fact and of law on which the dispositive part of the pronouncement is based (can. 1837 § 1, n. 3). As regards the reasons of law, the judge is free to set them out in the order he believes, without the conclusions of the parties being in any way binding on him, provided he naturally has recourse to norms of law having a bearing on the case; for the reasons of fact, the judge cannot instead go outside the ambit of the acta et probata. The sentence must lastly contain the pronouncement on the costs of the trial, which generally follow the losing party (can. 1873 § 1; cf. Regulae Rotae, § 184). Such a decision on costs, causing the regulation of the controversy to be exhausted in the sentence also under this aspect, has the purpose of preventing contestations from remaining in suspense for the future between the parties on the matter that formed the object of the lawsuit.

The extrinsic elements referred to in can. 1874 also contribute to constituting the s. It must begin with the invocation of the Divine Name; thereafter all the identifying details must be specified of the judge who issues the s., as well as of the parties who were in the case and of their procurators (can. 1874 § 2; cf. Regulae Rotae § 181, 1). Then the facts of the case must be briefly set out, the doubts submitted to the judge for resolution and the conclusions of the parties must be reported. There follow: the motivation properly so called of the s., which will consist of two parts, one in iure and the other in facto (both of which sometimes take the respective form of so many considerando and risultando), and the operative part, by which the doubts are answered and the costs are determined, adopting, if necessary, the executory formula. The s. is then closed by the indication of place and time and by the signatures of the judge or of all the members of the judging college and of the notary (can. 1874 § 5).

The s., in order to be juridically operative, must be published, like the law. Publication must take place as soon as possible, although the law has not established any term (can. 1876); and under the current law in force it is made, unlike what was established in the ius vetus (according to which the sentence was published in ordinary trials by reading it at the hearing in the presence of the parties and in summary trials by notification to the parties), in the three ways fixed by can. 1877. The s. can, that is, be published by a summary reading of it by the judge at the hearing fixed for that purpose, after the parties have been cited to appear. Publication can also be made by notifying the parties that the judge has deposited the s. in the registry and by granting them at the same time the faculty to read it in the registry and to request a copy of it. Lastly, the s. is considered published when notification of it is made to the parties by postal service, according to the provision of can. 1719. Nothing, however, prevents notification from being made also through the office of messengers by virtue of that provision.

Lastly, it is to be considered that the s., once perfected by publication, as a juridical act resolving the cognitive relationship, produces determinate effects, and precisely from it derive: a) the obligation for costs for the losing party; b) the thing adjudged, understood also in the substantive sense of the definitiveness of the s. with respect to future trials; c) the executory action (actio iudicati).

Fernando Della Rocca