LITE PENDENTE. — I. CONCEPT.
In common juridical usage the concept of *lite pendente* or lis pendens signifies the existence of a pending lawsuit, inasmuch as the litigation initiated by the plaintiff has been brought before the judge and has legally come to the knowledge of the defendant.
With the establishment of such a procedural situation, the possibility of a similar lawsuit before the same magistrate or another equally competent judge is precluded: this is in deference to the principle that the same cause cannot be examined more than once at the same level of jurisdiction; if this were to occur, there would be a contradiction in the nature of jurisdictional power. It is precisely in consideration of this principle that the exception of lis pendens is asserted; an exception which, moreover, finds its first foundation in the concept of *res iudicata*. It may indeed be said that lis pendens functions as a preventive guarantee of the institution of *res iudicata*, in that it aims to prevent the possible emergence, in the same matter between the same parties, of two distinct decisions, perhaps contradictory, one of which, in any case, would be vitiated by substantial illegitimacy.
II. LIS PENDENS IN CANON LAW.
As is obvious, the institution of lis pendens, understood as an exception, has held its importance in various legal systems. In Roman law there is the *exceptio rei (iudicatae)* in *iudicium deductae*, which may be raised after the *litis contestatio*; in medieval law there is already the *exceptio litis pendentis*: *ubi acceptum est semel iudicium, ibi et finem accipere debet*.
The procedural law of the Church, which has undoubtedly drawn elements from the aforementioned legal systems, has consolidated this institution, giving it, over time, a distinctive character.
For the exception of lis pendens to be applicable in canon law, as in civil legislation, it is first of all indispensable that the procedural relationship be essentially individualized and differentiated; therefore the three constitutive elements (parties, title, and object of the claim) must be clearly defined. Only the simultaneous identity of these three elements renders two controversies identical to each other, even if they appear different: the commonality, instead, of one or two elements gives rise to the figures of *continenza* and *connessione di causa*, which some writers consider a form of partial lis pendens.
In addition to the prerequisite of the identity of the causes, for the exception to be upheld, there must be simultaneous legal knowledge of the identical proceedings by the three subjects: plaintiff, defendant, and judge. In relation to this other indispensable element, a profound divergence is noted between canon law, as well as German and Austrian law, on the one hand, and French and Italian law on the other. In the canonical procedural system, the judge, following the *oblatio libelli* by the plaintiff, has preliminarily declared his own competence, in addition to having examined the claim and assessed its merits. After this prior examination, which culminates in a decree, the same judge orders the citation to be served on the defendant. From the moment of service, therefore, the procedural relationship is considered fully established, and from that moment the litigation must be deemed pending. This configuration contrasts with the provisions of the French and Italian codes, where the citation is considered an act exclusively of a party, the knowledge of which by the judge occurs only at the time of the actual appearance of the parties, or of one of them.
III. EFFECTS OF LIS PENDENS.
Such a different determination regarding the beginning of the procedural relationship capable of constituting the exception of lis pendens undoubtedly assumes an essential character in view of the effects and consequences that this exception generates:
a) in fact, once the exception is raised and its foundation proven, the cause, pursuant to can. 1568 CIC, *ratione praeventionis*, is remitted to the judge who first ordered the citation to be served; therefore, for the purpose of establishing the *jus praeventionis*, it is necessary to prove that the citation was served, and from this moment, and not from the date of the decree, the priority is determined;
b) presupposing the identity of the causes, it follows that the exception may also be raised when the older of the two is already at the appellate stage, since «ob istam remissionem altera quae posterior proposita fuit non amittit primum gradum iurisdictionis»;
c) another issue of fundamental importance is this: the CIC at can. 1628 § 1 establishes the general principle that all «exceptiones dilatoriae, eae praesertim quae respiciunt personas et modum iudicii, proponendae et cognoscendae sunt ante contestationem litis». This presupposition may, however, be overcome by considering what is prescribed with equal definiteness by can. 1568 regarding the *jus praeventionis*, in relation to two or more identical causes pending before different tribunals. On this point, authoritative opinion holds that this *jus praeventionis* may and must be extended even in the case of two or more identical causes pending before the same tribunal. In support of this argument, the analogical principle is invoked, amply justified by the safeguarding of the *bonum publicum*, which in the specific case is reflected in the protection of the nature of jurisdictional power;
d) *sub specie boni publici*, and also in consideration of the definiteness of what is prescribed by can. 1568, another question is raised, to which authors respond affirmatively, namely whether the judge may raise the exception of lis pendens *ex officio*: in this regard it is added that such a finding may be made not only in *litis litis*, but also at any stage of the proceedings, both pursuant to can. 1568 and by virtue of the Church’s supplementary power as per can. 1619 § 2.
Such an *ex officio* finding of lis pendens is also recognized by other legal systems (e.g., the Austrian), whereas it is not permitted by Italian procedural law, together with the exception of *res iudicata*;
e) particular importance then attaches to the moment determining the pendency of the litigation in accordance with the principle established in can. 1725 § 5, according to which «cum citatio legitime peracta fuerit aut partes sponte in iudicium venerint... in pendere incipit; et ideo statim locum habet principium: lite pendente, nihil innovetur».
With this canon, which recalls the fundamental principles of the decretal law, any act performed in violation of a legitimate prohibition is paralyzed. Such acts are defined by the CIC as *attentati* (can. 1854), for which canon law «intends... to preserve the integrity of the judgment by prohibiting unilateral innovations to it with respect to its current state and the normal developments that are proper to it by virtue of general legal norms and the legitimate dispositions issued by the judge» (Della Rocca).
Naturally, a preliminary condition must be met for an innovative act to be considered an *attentato*, namely that it occurs during the pendency of the litigation. The legal figure of the *attentato* cannot, however, be recognized when, for example, «alienatio iudicii mutandi causa fit, si quis metu futuræ litis alienationem dolo malo, ita perficiat, ut aut rem transferat in extraneam personam», etc. Such an act in fact occurs «metu futuræ litis» or «de re quae fieri potest litigiosa», and therefore differs from the alienation of a litigious thing, which is already subject to the judge.
There is no doubt that the judicial examination of the *attentato* constitutes an incidental matter, which generally suspends the main judgment but maintains the pendency of the litigation in all respects.