RESTITUTION, "IN INTEGRUM". - It is defined by writers on canon law as the extraordinary legal remedy by which one who has been injured in his rights is, on the basis of natural equity and by the action of the judge, restored to the legal condition in which he was before the injury.
The institution, proper to Roman law and widely used by the praetor, with the evolution of the laws has assumed precise and determined boundaries, and the law of the Church itself, both in the Decretals of Gregory IX (lib. I, X, tit. 41) and in the CIC, has limited the action of r. in i. to cases of injury to an act or contract (can. 1684), to the right of appeal for the contumacious (can. 1847), and principally to the possibility of challenging a sentence.
The definition of r. in i. presupposes, for the purposes of a legitimate institution of the action, three elements: a) validity and rescindability of the act or transaction. For the ordinary remedy of the querela nullitatis applies to an invalid act, just as the restoration of a determinate legal state becomes impossible when the act is not rescindable; b) proof of a grave injury, which must be caused by the deceit of the opposing party or by the incapacity of the injured party; the action can never be brought, however, when the injury must be ascribed to chance; c) the existence of a causa restituendi, which the CIC contemplates in can. 1687 §§ 1-2. Sufficient causes of r. in i. are, in fact, minority or the status of a moral person, which, by reason of its dedication to social ends, cannot be burdened with the damages caused by the fault of the responsible administrators. This extraordinary remedy is granted to minors and to moral persons, in order to obtain greater protection for them, even when ordinary remedies exist (can. 1687 § 1); and this in deference to the well-known canonical principle: habenti remedium ordinarium non est tribuendum extraordinarium nisi hoc sit pinguius. Persons of full age may also benefit from r. in i., when there is no ordinary remedy to repair the injury (can. 1687 § 2) and there exists a just cause of restitutio which, although not specified by the CIC, can be recognized, and in this it also refers back to the provisions of Roman law, in the absence of the injured party, in the deceit of the opposing party, in metus, in error.
The action, as can. 1688 § 1 requires, must be brought before the ordinary judge and within the peremptory term of four years from the attainment of full age in the case of minors, and in the case of moral persons or persons of full age from die laesionis factae et cessati impedimenti. As is obvious, r. in i. is not operative with respect to rights acquired by third parties in good faith prior to the bringing of the action.
As has been observed, r. in i. against a sentence is nothing other than a particular application of the general institution. After the sentence has become res judicata, and therefore can no longer be challenged, the extraordinary remedy of r. in i. comes to the aid when, through grave new elements that have supervened or through violation of the law, it is discovered that such a sentence is unjust and therefore manifestly contrary to law. Since it is an extraordinary remedy, it follows that it cannot be invoked when the sentence is still susceptible of review by an ordinary means, such as appeal and the querela nullitatis.
The r. in i. can be brought only in the four cases exhaustively contemplated by the CIC, of which the first three rest on elements of mere fact and the last on law. They occur: 1) when the sentence rests on documents subsequently shown to be false; 2) when after the sentence new facts have emerged which entail a decision not in conformity with the one issued; 3) when the formulation of the sentence is a direct consequence of the deceit of one party against the other. If, however, the deceit is imputable to a third party, the action of restitutio does not arise, but rather that for damages against the third party; 4) when in the sentence there are manifest elements of violation of law. For this last hypothesis there arises the question raised by the treatises, whether the restitutio is to be granted in cases of violation of procedural laws. Some authors, on this point, starting from the distinction of procedural laws into formal and substantive, do not doubt that the violation of substantive procedural laws generates injustice, and that therefore the action of restitutio is to be granted.
The judge competent to hear a cause of r. in i. may be the same magistrate who issued the challenged sentence, when it is a matter of reforming it on account of new facts adduced; if, on the other hand, the reform is sought on grounds of law (can. 1905 § 2, n. 4), then obviously the same judge who issued an erroneous decision cannot be approached. The time available for bringing the action is four years, and when it is proposed on grounds of fact the time runs from the day on which the documents were discovered to be false, or from the moment when the new documents were found. In the case, however, of a challenge for violation of law, the four-year term runs from the notification of the sentence itself. There is no doubt that the new sentence brought about by the r. in i. is subject to the ordinary remedy of challenge, such as appeal, whether the restitutio was motivated ob rationes facti or ob rationes iuris.
Bibliography4 works
Giuseppe Spinelli