Instance

INSTANCE. - This term is used in procedural law with two different meanings. I., even outside canonistic language, in fact indicates any request or petition that, in the course of a trial, or even before it, is addressed to the judge, except only those for which a particular form is prescribed and which have particular names, such as, for example, the summons, the libellus or the appeal. By i. it is asked that the judge, after the presentation of the libellus and its admission, summon the other parties in order to arrive at the agreement of the doubt; again by i. new evidentiary means are requested, and so on.

Far more important, in canon law, is the second meaning: in fact i., or rather, i. of the suit (cf. CIC, Book IV, Part I, Title VIII De litis instantia) is the proceeding and the unfolding of the cause from the contestation of the suit to its conclusion by pronouncement of the judge through the evidentiary instruction. Fundamental in this regard is can. 1732: « the i. begins with the contestation of the suit; it ends in all those ways by which the judgment is concluded, but it may also be interrupted earlier, or cease subsequently through peremption or renunciation ».

The i. is divided into two distinct and determinate phases; the first, the instructional phase, in which all the proofs are gathered and which ends with the publication of the acts and the conclusion in the cause, and in which the action of the judge is preeminent; the second in which the drafting and presentation of the defensive briefs and the issuance of the sentence take place. The presuppositions of the i. of the suit are the introductory libellus (v.), the summons (v.) and the contestation of the suit (v.); its consequence, the definition of the cause. Normally the i. ends with a definitive sentence, but it may also end with a settlement (v.), with a compromise to arbitrators (v. ARBITRI), with a decisive oath (v.). In this way the suit has a conclusion and the cause a decision. But the i. may also end without there having been a decision on the cause; this happens when there is peremption or renunciation. There are moreover cases exhaustively listed, in which the i. does not end, but is interrupted; the interruption takes place by operation of law when, during the trial, one of the two parties in the cause dies, or loses the capacity to stand in judgment, or, where it does not act on its own behalf but by virtue of an office, ceases from the tenure of that office. It should be noted that the i. is interrupted only in the case in which one is still in the instructional phase, whereas if there has already been the publication of the acts and the conclusion in the cause, the i. follows its course, after the judge has summoned ex officio the heir or the successor. Another case of interruption of the i. occurs when the procurator or the curator ceases from office. The i. resumes, from the point at which the interrupting cause occurred, through the heirs or successors or when a new procurator or curator has been appointed by the party, or the latter declares that it wishes to stand in judgment personally. An exception to the general rule occurs in causes in which there is a controversy among clerics over the right to a benefice: despite the death of one of the parties, the i. is not interrupted, but must be continued by the promoter of justice, unless the benefice is of free collation of the Ordinary and the latter prefers to adjudge the cause and the benefice to the survivor. While, as already said, the normal way in which the i. ends is the sentence or the other forms substituting for it, the i. may end through peremption (v.), or through renunciation (v.); the former operates by law following the procedural inactivity of the parties; the renunciation is an act of the plaintiff party, which achieves the purpose of putting an end to the i. only if it is accepted by the defendant and admitted by the judge.

Giorgio Franco