RESTITUZIONE «IN INTEGRUM»

RESTITUTION *IN INTEGRUM*

Restitution *in integrum* is defined by canon law jurists as an extraordinary legal remedy by which a person who has been injured in their rights is, on the basis of natural equity and through the action of the judge, restored to the legal condition in which they were before the injury.

This institution, originating in Roman law and widely used by the praetor, has, with the evolution of laws, assumed precise and determined boundaries. The same law of the Church, both in the Decretals of Gregory IX (Book I, X, title 41) and in the *Codex Iuris Canonici*, has limited the action of restitution *in integrum* to cases of injury arising from an act or contract (can. 1684), to the faculty of appeal for contumacious parties (can. 1847), and principally to the possibility of challenging a judgment.

The definition of restitution *in integrum* presupposes, for the legitimate initiation of the action, three elements:
a) the validity and rescindability of the act or transaction. Indeed, the ordinary remedy of a complaint of nullity applies to an invalid act, just as the restoration of a particular legal status is impossible when the act is not rescindable;
b) proof of a serious injury, which must be caused by the fraud of the opposing party or by the incapacity of the injured party; however, the action cannot be initiated if the injury is attributable to a fortuitous event;
c) the existence of a *causa restituendi*, which the *Codex Iuris Canonici* contemplates in can. 1687 §§ 1-2. Indeed, sufficient grounds for restitution *in integrum* include minority or the status of a moral person, which, due to its dedication to social purposes, cannot bear the damages caused by the fault of responsible administrators. This extraordinary remedy is granted to minors and moral persons in order to obtain greater protection, even when ordinary remedies exist (can. 1687 § 1); and this in observance of the well-known canonical principle: *habenti remedium ordinarium non est tribuendum extraordinarium nisi hoc sit pinguis*. Adults may also benefit from restitution *in integrum* if there is no ordinary remedy to repair the injury (can. 1687 § 2) and a just cause for restitution exists, which, although not specified by the *Codex*, may be recognized—drawing also on provisions of Roman law—in the absence of the injured party, in the fraud of the opposing party, in duress, or in error.

The action, as required by can. 1688 § 1, must be brought before the ordinary judge within a four-year prescriptive period from the attainment of majority in the case of minors, and, in the case of moral persons or adults, from the cessation of the impediments. As is obvious, restitution *in integrum* does not operate against rights acquired in good faith by third parties prior to the initiation of the action.

As has been observed, restitution *in integrum* against a judgment constitutes nothing other than a particular application of the general institution. After a judgment has become res judicata and can no longer be challenged, the extraordinary remedy of restitution *in integrum* comes into play if, due to grave new elements that have emerged or due to a violation of the law, it is discovered that the judgment is unjust and manifestly contrary to law. Since this is an extraordinary remedy, it follows that it cannot be invoked if the judgment is still susceptible to review through an ordinary means, such as appeal or a complaint of nullity.

Restitution *in integrum* may be sought only in the four cases expressly contemplated by the *Codex Iuris Canonici*, the first three of which are based on factual elements and the last on a legal ground. They occur: 1) when the judgment is based on documents subsequently proven false; 2) when, after the judgment, new facts emerge that would have led to a different decision; 3) when the formulation of the judgment is a direct consequence of the fraud of one party against the other. However, if the fraud is attributable to a third party, the action for restitution does not lie, but rather an action for damages against the third party; 4) when the judgment contains clear elements of a violation of the law. For this last case, a question arises among jurists as to whether restitution should be granted in cases of violation of procedural laws. Some authors, proceeding from the distinction between formal and substantive procedural laws, do not doubt that the violation of substantive procedural laws produces injustice and that therefore the action for restitution should be granted.

The competent judge to hear a case of restitution *in integrum* may be the same magistrate who issued the judgment under challenge, if the reform is sought on the basis of new facts presented; if, however, the reform is requested for reasons of law (can. 1905 § 2, n. 4), then obviously the same judge who rendered an erroneous decision cannot be approached. The time limit for bringing the action is four years, and if it is proposed for factual reasons, the time runs from the day on which the documents were discovered to be false, or from the moment the new documents were found. In the case of an appeal for violation of law, the four-year period runs from the notification of the judgment itself. There is no doubt that the new judgment resulting from restitution *in integrum* is subject to ordinary remedies of challenge, such as appeal, whether the restitution was granted for reasons of fact or of law.

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