OPPOSITION OF THIRD. - It is one of the means of impugnment against a judgment (v.), and precisely the one granted to a person who, being a stranger to the trial, might be harmed by the decision of the judge.
The judgment, in fact, is binding between the parties and as such must be recognized, not only by the parties, but by third parties. It is not rare, however, for the latter to claim a right either incompatible with the one declared in the judgment or which would be prejudiced by the execution of the judgment itself. In such cases the prejudice arising from the judgment can be neutralized by bringing against it the so-called o. by a third party. The nature of this remedy is that of a negative action for a declaration, having the purpose of obtaining a judicial declaration of the illegitimacy of the judgment with regard to the opponent. According to a common, though not undisputed, classification, the o. by a third party 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. While those passively legitimized are the subjects between whom the judgment was pronounced, actively legitimized to bring the o. by a third party is any person who was not a party, either personally or through a representative, in the trial. Another condition is that there be a judgment open to opposition by a third party; and such is every definitive judgment, or interlocutory judgment having the value of a definitive judgment, that is enforceable. Indeed, in order for the judgment to be able to cause prejudice to the third party, it must be productive of effects and above all must be endowed with executory force. Therefore, judgments of first instance not furnished with provisional enforceability are not open to opposition by a third party, nor are judgments of appeal for which the suspension of executory efficacy has been ordered. From the prejudice deriving to him from the judgment - this being another condition of the o. by a third party - there arises for the latter an interest in the opposition. It is necessary, in fact, that the third party show that there has been, or probably could be, by means of the judgment being impugned, an infringement of a right of his. Lastly, the condition must be present that execution of the judgment has not yet taken place, since otherwise nothing remains for the third party but to bring, insofar as possible, the ordinary action to assert his own right.
The 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 term for bringing it will be the decendium established for appeal, running from the day on which the third party learned of the judgment; the competent judge will be the higher judge of appeal, and the rules laid down for appeal will be observed; in the other, conversely, the opposition may be brought at any moment during the period between the publication and the execution of the judgment; competent to decide it will be the judge who issued it, and the rules laid down for incidental causes will be observed. It will, however, always be the judge a quo who, after a summary examination of the opposition, determines whether the libellus introducing it is to be admitted or not; thereafter, if the petition is admitted, he will transmit the acts to the higher judge where the opponent has chosen the path of appeal. By the decree admitting the petition the judge may, for grave reasons, grant the provisional enforceability of the judgment, since as a rule the opposition has suspensive effect; by the decree rejecting the said petition, on the other hand, the judge will forthwith order the execution of the judgment. As for the conduct of the trial, the common rules will be followed.
The trial of o. by a third party may naturally also be closed by peremption or by renunciation. In the proceeding of o. by a third party, intervention in support is admitted in accordance with can. 1888 until the cause is defined: an intervention that will be implicit when the matter is indivisible or involves a joint obligation. The judgment that defines the proceeding of o. by a third party reforms the judgment impugned if the opposition is upheld in the sense necessary for the claims invoked by the third party or the requests put forward by him to be granted. Also in matters of execution, the third party who is harmed by the execution itself may always, in protection of his right, bring the o. by a third party in accordance with cann. 1898 ff., informing the executor so that he desist from the execution.
Bibliography5 works
Fernando Della Rocca