RECONVENTION. - It is the action that the defendant brings against the plaintiff, thereby becoming plaintiff in the reconvention itself. According to this general concept, the consequence arises that in the suit brought by the plaintiff there comes to be inserted a proceeding directed to the ascertainment, discussion and determination of the counterclaim.
But, naturally, a conception of the counterclaim so broad as to allow the defendant to bring any other claim whatsoever against the plaintiff is not admissible. One who, for example, is summoned to court by his wife for a declaration of nullity of marriage cannot counterclaim against the plaintiff for the return of a sum lent, nor can one who has been summoned for eviction bring an action for disavowal of paternity. Evidently it is not enough that the defendant have some claim whatsoever to assert against the plaintiff; it is further required that the claim at issue in the reconvention be connected to an objective element of the plaintiff's claim, that is, that it have in common with it not only the persons (plaintiff and defendant) but also the petitum or the causa petendi or both.
This is the concept of reconvention today accepted by canonical doctrine, whereby substantially the reconvention is a case of objective connection of causes, respectively brought by the plaintiff and by the defendant (can. 1567). Indeed can. 1690, in defining the reconvention as « actio quam reus coram eodem iudice in eodem iudicio instituit contra actorem ad sub-movendam vel minuendam eius petitionem », seems to restrict the concept of reconvention to the plea of set-off and the related counterclaim. But this is only one case, a typical case, which does not exclude reconvention also for other grounds of objective connection of actions.
The canonical legislator, mindful of the brevity of trials, provides against the perpetuation of litigation by forbidding the reconventio reconventionis (can. 1690 § 2).
Reconvention is admitted in all contentious causes, with the exception of causes of spoliation, on the basis of the principle: spoliatus ante omnia restituendus. Can. 1691, by excluding reconvention in criminal causes, says something that can have only a historical meaning, but certainly not a scientific one, since by now everyone knows that the criminal action is public, that is, belongs to the promoter of justice and not to the injured and denouncing parties, and that therefore a reconventio criminalis is simply inconceivable. Persisting, however, in the historical memory and still confusing reconvention with set-off, can. 1691 refers to can. 2218 § 3, in re criminali, whereby mutua iniuria - but only for the offenses of insult and defamation - compensatur.
The procedural effects of reconvention are, first of all, that the defendant assumes with respect to it the role of plaintiff, with the corresponding procedural obligations. The competence of the judge, even if he is delegated ad unam causam, is automatically extended, unless the controversy, brought in the reconventional forum, belongs, by absolute limits, to a higher judge; in which case the entire cause must be devolved to the latter.
The counterclaim may be brought, in accordance with can. 1630, at any stage of the trial of first instance, but before the sentence: and this too is a serious drawback, which can however be tempered by the application of the second paragraph of that same canon, namely « Cognoscantur autem simul cum conventionali actione, hoc est pari gradu cum ea, nisi eas separatim cognoscere necessarium sit aut iudex opportunus existimaverit ». At the appellate stage, on the other hand, reconvention is inadmissible (can. 1891). Should a question arise as to the admissibility of the counterclaim, a quaestio incidens will be raised and dealt with, in the ordinary form of incidental matters (can. 1837 ff.).
Bibliography3 works
Corrado Bernardini