Revocation

REVOCATION. - In Church law the term has a single meaning and is embodied exclusively in an act performed by the competent legislative or administrative authority for the purpose of repealing existing legal norms or administrative provisions; in civil legislation, on the other hand, it takes on a twofold meaning: one reflects all the acts of those who are legitimately interested in revoking a given transaction or contract directly or by judicial process; the other refers to an extraordinary means of challenging judgments, that is, an institution of a procedural nature.

In various canons the CIC refers to the institution of revocatio. Treating of the abrogation of law, can. 22 establishes that canon law ceases to have force, among other things, by express abrogation, that is, when the new law expressly states that the previous one is abrogated. It is true that in the aforementioned canon the word revocatio is not explicitly used, but that reference to it was intended is inferred beyond doubt from the following can. 23: In dubio revocatio legis praexistenti non praesumitur. Other cases of revocatio occur in the matter of privilege and of rescript. In fact can. 60 § 1 enumerates among the principal cases of the cessation of a privilege, revocation notified to the person concerned: rescriptum, per peculiarem superioris actum revocatum, perdurai usque dum revocatio ei, qui illud obtinuit, significatur; just as in can. 71 there is also mention of the revocation of the privileges contained in the CIC itself only in the case of a subsequent general law. Rescripts, which, like privileges, are as a rule perpetual, also cease by r., if the granting authority considers that the concession contained in the rescript no longer corresponds to the good of the individual or to the criteria of sound ecclesiastical administration. Other cases of reference to the institution of r. are those relating to the impossibility of revoking a donation made to churches propter ingratum praetati vel rectoris animum (can. 1036 § 4) and the revocation of the right of patronage by the Apostolic See (can. 1470 § 1, n. 2).

The Italian Civil Code also contemplates various cases of r. Among those worthy of greater note are the revocation of the mandate (art. 1722 § 2), by which that contract is terminated if the principal brings it to an end by unilateral withdrawal. As to the manner of carrying it out, revocation may be express or tacit (art. 1724).

A donation may be revoked for two reasons, exhaustively established in the Civil Code (art. 800), namely for ingratitude or for the subsequent birth of children. Both causes of r. have peremptory time limits for the purposes of bringing the claim: the first must be brought by the donor or his heirs within one year from the day on which the donor became aware of the fact that permits the r.; the other within five years from the day of the birth of the last legitimate child or descendant, or of the notice of the existence of the child or descendant, or of the acknowledgment of the natural child.

Also to be remembered is the total or partial r. of a will by the testator. Revocation under art. 680 of the Civil Code may be made "only by a new will" or by an instrument received by a notary in the presence of two witnesses in which the testator personally declares that he revokes in whole or in part the earlier disposition. A peculiar case of r. ope legis of the will occurs, under art. 687, through the subsequent birth of children as forced heirs.

The Code of Civil Procedure then contemplates the institution of r. as an extraordinary means of challenge, which may be brought for exhaustively prescribed reasons before the same judge who delivered the judgment whose annulment is sought, when, since that judgment is no longer subject to other challenges allowing an examination of fact, the injustice of the decision could not otherwise be remedied. This institution corresponds to that of revision within the sphere of criminal procedural law (art. 553 ff.) and to that of restitutio in integrum (v.) in canonical procedure (can. 1902 ff.). Art. 395 of the Code of Civil Procedure enumerates the specific cases that permit such a challenge: namely 1) if the judgment is the effect of the fraud of one of the parties to the detriment of the other; 2) if judgment was given on the basis of evidence recognized or otherwise declared false after the judgment, or which the losing party did not know had been recognized or declared false before the judgment; 3) if after the judgment a decisive document has been discovered which the losing party had not been able to produce; 4) if the judgment is the effect of an error of fact resulting from the evidence admitted to the proceedings; 5) if the judgment is contrary to another earlier one having between the parties the authority of res judicata, provided that it did not rule on the relevant objection; 6) if the judgment is the effect of the fraud of the judge established by a judgment that has become final. Against the judgment of r. the ordinary means of challenge are available, as is obvious: on the other hand, some writers exclude that it may in principle be subject to a new challenge by r., and this in order to satisfy the fundamental requirement of legal certainty.

Giuseppe Spinelli