Perenzione

PEREMPTION. - In canon law it can mean the cessation of the right of action, or it can indicate a manner in which the instance of a lawsuit comes to an end. Peremptio actionis is not an exclusive term, because the synonym extinctio actionis may be substituted for it. Peremptio instantiae, on the other hand, is an exclusive term, indicating the manner in which the instance ends before its natural conclusion.

The term p. is used by the CIC in cann. 1736-39 when speaking of the extinction of the instantia litis. This, once begun with the litis contestatio, is directed toward a term, which finds its natural seat either in the process (judge's sentence, decisive oath, arbitral award) or in other ways, outside the process, but which inhere in it (settlement). The instance of the lawsuit can moreover be interrupted or end before its natural term. P., in fact, or renunciation, are the two ways in which the instance ends without the process having had its normal course. P. derives from the inactivity of the parties in the process; indeed, according to can. 1736, if neither of the parties performs any procedural act for two years at first instance or for one year at the appellate stage, the process is extinguished; if it is a matter of p. at the appellate stage, the judgment of first instance passes into res judicata. Can. 1737 is grave and worthy of consideration: p. «obtinet ipso iure, adversus omnes»; the intervention of the parties is not only not necessary, but is entirely superfluous, because not even a decree of the judge declaring the instance perempted is required; and it can be raised even ex officio. P. operates also against minors and persons equated to them, who stand in judgment through an intermediary, saving the faculty of the representatives to act for compensation of damages against the representatives who through fault have allowed the instance to be perempted. Naturally p. extinguishes the process and not the action, which, always saving the terms of prescription and extinction, can be brought again, unless it is a matter of p. at the appellate stage. P. (can. 1738) extinguishes the acts of the process, not those of the cause, which have value also in another instance between the same parties, while with regard to third parties they have merely documentary value. Since p. is a consequence of the inactivity of both parties to the suit, each of them must bear the expenses it had incurred.

Giorgio Franco