OPPOSIZIONE DI TERZO
It is one of the means of challenging a judgment (v.) and specifically the one granted to a person, not a party to the proceedings, who might be harmed by the judge’s decision.
A judgment, in fact, takes effect 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 third parties to assert a right that is incompatible with the one declared in the judgment or that 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 third-party opposition. The nature of this remedy is that of a negative declaratory action aimed at obtaining a judicial declaration of the illegitimacy of the judgment with respect to the opponent. According to a common but not uncontested classification, third-party opposition belongs to the category of extraordinary remedies.
The first condition that must be met for the remedy of opposition to be used is that the opponent be a third party. While the parties against whom the judgment was rendered are the proper subjects in the passive sense, any person who was not a party to the proceedings, either personally or through a representative, is actively legitimated to bring third-party opposition. Another condition is that there must be a judgment that is subject to third-party opposition; and such is every definitive judgment or interlocutory judgment having the force of a definitive judgment that is enforceable. Indeed, for a judgment to be capable of prejudicing a third party, it must produce effects and, above all, have executive force. Therefore, judgments of first instance not granted provisional enforceability and judgments of appeal for which the enforcement of the judgment has been suspended are not subject to third-party opposition. The prejudice that the third party suffers from the judgment—this being another condition of third-party opposition—gives rise to the third party’s interest in bringing the opposition. It is necessary, in fact, that the third party demonstrate that the judgment under attack either has already harmed or is likely to harm one of his rights. Finally, there must be the condition that the judgment has not yet been executed, for otherwise the third party can only, if possible, bring an ordinary action to assert his right.
The opposition can be brought in two ways: either by way of appeal or by way of a request for revision of the judgment. In the first case, the time limit for bringing the opposition will be the ten-year period established for appeal, running from the day on which the third party had notice of the judgment; the competent judge will be the higher appellate court, and the rules governing appeals will be observed. In the second case, on the other hand, the opposition may be brought at any time during the period between the publication and the execution of the judgment; the judge who rendered the judgment will be competent to decide, and the rules governing incidental proceedings will be observed. It will always be the judge a quo, however, who, after a summary examination of the opposition, will determine whether the petition introducing it should be admitted or not; and if the petition is admitted, he will transmit the record to the higher court or to the opponent who has chosen the appellate route. By the decree admitting the petition, the judge may, for grave reasons, grant provisional enforceability of the judgment, since as a rule the opposition has suspensive effect; by the decree rejecting the petition, on the other hand, the judge will order the execution of the judgment forthwith. As for the conduct of the proceedings, the ordinary rules will be followed.
The proceedings in third-party opposition may naturally also terminate by peremption or by renunciation. In the judgment of third-party opposition, adhesive intervention is admitted under can. 1888 until the cause is decided; such intervention will be implicit when the matter is indivisible or the obligation is joint and several. The judgment that concludes the third-party opposition proceedings will reform the judgment under attack if the opposition is upheld to the extent necessary to give effect to the rights asserted by the third party or to the requests made by him. Even in matters of execution, the third party who is harmed by the execution itself may always bring third-party opposition under can. 1898 and following to protect his right, notifying the execution so that it may desist.
Fernando Della Rocca