INSTANCE. – This term is used in procedural law in two distinct senses. I., even outside canonistic language, in fact denotes any request or petition that, during the course of a trial or even before it, is directed to the judge, with the sole exception of those for which a particular form is prescribed and which have specific names, such as, for example, the citation, the libellus, or the appeal. With an instance, one seeks that the judge, after the presentation of the libellus and its admission, cite the other parties so as to arrive at the framing of the doubt; likewise, with an instance, new means of proof are requested, and so forth.
Far more important in canon law is the second meaning: indeed, instance, or rather, the instance of the suit (cf. CIC, I. IV, part I, tit. VIII De litis instantia) is the proceeding and the development of the cause from the joinder of issue to its conclusion through the judge’s pronouncement following the taking of evidence. Fundamental in this regard is can. 1732: «The instance begins with the joinder of issue; it ends in all those ways by which the trial is concluded, but it may also be interrupted beforehand, or cease as a result of lapse of time or renunciation.»
The instance is divided into two distinct and determinate phases: the first, the instructive phase, in which all the evidence is collected and which ends with the publication of the acts and the conclusion of the cause, and in which the judge’s action is preeminent; the second, in which the drafting and presentation of the pleadings and the issuance of the sentence occur. The presuppositions of the instance of the suit are the libellus (v. introductory), the citation (v.), and the joinder of issue (v.); the consequence is the definitive resolution of the cause. Normally the instance concludes with a definitive sentence, but it may also conclude with a settlement (v.), with a submission to arbitration (v. ARBITRATO), or with a decisive oath (v.). In this way the suit reaches a conclusion and the cause receives a decision. Yet the instance may also terminate without there having been a decision on the merits; this occurs when there is lapse of time or renunciation. There are moreover certain cases, expressly enumerated, in which the instance does not terminate but is interrupted; interruption occurs by operation of law when, during the trial, one of the two parties dies or loses the capacity to litigate, or, if acting not in a personal capacity but by virtue of an office, ceases to hold that office. It should be noted that the instance is interrupted only if this occurs while still in the instructive phase; if, however, the publication of the acts and the conclusion of the cause have already taken place, the instance continues its course after the judge has cited ex officio the heir or successor. Another case of interruption of the instance occurs when the procurator or curator ceases to hold office. The instance resumes from the point at which the cause of interruption occurred, either 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 litigate in person.
An exception to the general rule obtains in causes involving controversy among clerics over the right to a benefice: despite the death of one of the parties, the instance is not interrupted but must be continued by the promoter of justice, unless the benefice is one of free collation by the Ordinary and the latter prefers to award the cause and the benefice to the surviving party. Whereas, as already stated, the normal way in which the instance of the suit concludes is by sentence or other substitutes for it, the instance may terminate by lapse of time (v.) or by renunciation (v.); the former operates by operation of law following the procedural inactivity of the parties; renunciation is an act of the plaintiff, which achieves the purpose of putting an end to the instance only if accepted by the defendant and admitted by the judge.