OPPOSIZIONE DI TERZO. — This is one of judgment (v.), and specifically the one granted to a person who, being a stranger to the proceedings, could be harmed by the judge’s decision.
A judgment, in fact, has force between the parties and, as such, must be recognized not only by the parties but also by third parties. It is not uncommon, however, for the latter to claim a right that is either incompatible with the right declared in the judgment or would be prejudiced by the execution of the judgment itself. In such cases, the prejudice arising from the judgment may be neutralized by bringing against it the so-called o. di t. The nature of this remedy is that of a negative action for a declaration, intended to obtain a judicial declaration that the judgment is unlawful as regards the opponent. According to a common, though not undisputed, classification, the o. di t. belongs to the category of extraordinary remedies.
The first condition that must be present for the remedy of opposition to be used is that the opponent be a third party. Whereas those against whom the judgment was rendered have passive standing, any person who was not a party, either personally or through a representative, in the proceedings has active standing to bring the o. di t. Another condition is that there be a judgment opposable by a third party; this includes every final judgment, or interlocutory judgment having the value of a final judgment, that is enforceable. Indeed, for a judgment to cause prejudice to a third party, it must produce effects and, above all, possess executory force. Thus, judgments of first instance not granted provisional enforceability are not opposable by a third party, nor are appellate judgments whose executory effect has been suspended. The prejudice suffered by the third party as a result of the judgment—another condition of the o. di t.—gives rise to the latter’s interest in bringing opposition. It is necessary, in fact, for the third party to demonstrate that the judgment being challenged has caused, or could probably cause, an infringement of one of his rights. Finally, the condition must be met that execution of the judgment has not yet taken place, since otherwise the third party has no alternative, insofar as possible, but to bring an ordinary action to assert his right.
Opposition may be brought in two ways: either in the form of an appeal or in the form of a request for revision of the judgment. In the first case, the time limit for bringing it will be the decendium established for an appeal, running from the day on which the third party learned of the judgment; the competent court will be the superior appellate court, and the rules laid down for appeals will be observed. In the other case, by contrast, opposition may be brought at any time during the period between publication and execution of the judgment; the court that issued the judgment will have jurisdiction to decide it, and the rules laid down for incidental actions will be observed. It will always be for the court a quo, however, after a summary examination of the opposition, to determine whether or not the pleading initiating it should be admitted; thereafter, if the application is admitted, it will transmit the record to the superior court where the opponent has chosen the appellate route. By the order admitting the application, the court may, for serious reasons, grant provisional enforceability to the judgment, since as a rule opposition has suspensive effect; by the order rejecting the application, on the other hand, the court will order execution of the judgment without further ado. As for the conduct of the proceedings, the ordinary rules will be followed.
The proceedings concerning the o. di t. may naturally also be terminated by peremption or withdrawal. In proceedings concerning the o. di t., intervention in support is permitted under can. 1888 until the case has been decided; such intervention will be implicit where the matter is indivisible or concerns a joint and several obligation. The judgment concluding the proceedings concerning the o. di t. reforms the challenged judgment if the opposition is upheld to the extent necessary to uphold the third party’s asserted grounds or the claims put forward by him. In matters of execution as well, a third party who is harmed by the execution may always bring, for the protection of his right, the o. di t. under cann. 1898 et seq., informing the executor so that he may desist from execution.
eccles., II, Roma 1939, p. 1034 sgg.; M. Conte a Coronata, Instit. juris can., III, Torino-Roma 1941, p. 339 sgg.; F. Della Rocca, Istit. di dir. processuale can., Torino 1946, p. 349 sgg. Fernando Della Rocca