Expenses

EXPENSES. - In theological-juridical terminology, the term expensae (s.) is customarily used to indicate the apportionment of certain financial charges.

The subject in itself touches on various matters: contracts, in which by law, custom and agreement the party who must bear the burden of transfer of ownership, maintenance, repairs, etc. is fixed; possession in good, doubtful and bad faith (v. FAITH [GOOD and BAD]) as regards the rights for preservation and improvements of the thing;
worship and sacred places, to determine the party to whom the s. must be assigned (cf. cann. 1186, 1296, 1469, 1477, 1523). In the matter of matrimonial dispensations the term has a specific meaning, to indicate the s. of the chancery and of postage, as opposed to other charges (componenda, taxes, agency: cf. can. 1056).

I. EXPENSES IN CANONICAL PROCEDURAL LAW

The subject takes on particular importance in contentious cases, where the sentence or decree that brings the case to an end must also determine the apportionment of the burdens that the course of the proceedings has imposed on the judging tribunal and its assistants (in penal cases the public authority itself must provide, since it is a matter of common interest). Here, "expenses" (more precisely, of the suit or procedural) are the sums of money to which the tribunal is entitled against the parties in the resolution of a case on various grounds: the honorarium owed to the tribunal, to its members, procurators, and advocates; allowances to experts and witnesses (cf. cann. 1664, 1787, 1805, 1808), chancery and postal expenses, transcription, translation, and verification of documents and instruments. They may be necessary (the minimum required to decide the case according to law), useful (they facilitate the case more or less: for example, expenses for the appointment of two advocates, cf. can. 1656), or superfluous (not having a determining or facilitating part: printing of documents, transcription of documents, etc.). Some include luxury (voluntary) expenses that in some way serve the case but do not favor it directly (photographs of documents [an authenticated copy being sufficient], use of aircraft or automobile for witnesses). From what has been said, the legitimacy and necessity of expenses is apparent, notwithstanding that the administration of justice is free of charge (can. 1908).

To determine the amount of the expenses in ecclesiastical cases is the task of the bishops assembled in council or provincial meeting (can. 1909); in their absence, custom or the decree of the judge supplies this; for security the latter may require at the beginning of the case a deposit or security (can. 1909). And if a party, through proven poverty (not in the vulgar sense, but in the canonical sense), is unable to meet all or part of the expenses, he may request exemption (v. PATROCINIO GRATUITO) or reduction (cann. 1914-16). The bishops may have a practical norm for fixing the amount (a norm that is obligatory for regional tribunals in marriage cases) in the practice of the S. Rota, reducing the quota proportionately (cf. Normae, June 29, 1934, chap. 8, in AAS, 26 [1934], pp. 487-91; 31 [1939], pp. 622-25; 32 [1940], p. 307).

A delicate problem is fixing the person who must pay the expenses. One may start from different principles with different conclusions: the expenses must be paid by the one who acted in bad faith, proven, not presumed; or by the loser, juridically at fault; or the reimbursement of expenses is considered a socially necessary element for the full defense of rights, and therefore to be divided equally between the parties. In canon law various approaches have been followed. At present a middle way is followed, with four hypotheses. 1) The losing party acted with good foundation and good faith, the case being arduous and difficult; then there is occasion for equitable compensation or distribution of the expenses between the parties; the principle applies also in cases in which both parties lost partially, in cases between blood relatives or relatives by marriage, and for other just causes to be prudently estimated by the judge (can. 1911; there is ample freedom to decide). 2) The losing party acted without good foundation, but in good faith or at least with no evident bad faith, through negligence in studying his own right; then he will pay only the expenses (can. 1910). 3) The losing party acted with temerity (evident bad faith, hostility, etc.); he will pay the expenses and compensate the other party for the damages suffered (can. 1910). 4) The losing party acted with fraud and deceit (false documents, bought witnesses); he will furthermore undergo penal action.

To determine in individual cases the amount of the expenses and the party bearing them is the task of the judge in the sentence (can. 1873); omission does not invalidate the sentence; and one will proceed separately as in an incidental case. In general the sentence fixes the party; by a subsequent executory act the amount is determined. When several persons are condemned to the expenses, the individual obligation is joint and several or pro rata, according to their share. One challenges the sentence regarding the expenses directly by recourse within 10 days to the same judge for revision or reform; indirectly, by appealing from the entire sentence (can. 1913).

II. COSTS IN ITALIAN PROCEDURAL LAW

The Italian Code of Civil Procedure (arts. 90-98) has certain points of contact with the CIC, with minor nuances: the acts performed or requested by a party during the trial are charged to the one who requests them (and who in certain cases must advance the related costs [arts. 90, 98; implementing provisions arts. 38 ff.]). In the judgment the judge orders the losing party to reimburse the costs in favor of the other party together with the defense fees; he may exclude the winning party from recovery if he considers the costs excessive or unnecessary; set-off is permitted in the case of mutual defeat or for other just reasons and in the case of settlement, unless there is an explicit agreement to the contrary. In the case of bad faith or gross negligence the order for costs also covers not only the costs but also the damages suffered (art. 96). If there are several losing parties, each is ordered to pay in proportion to their respective interest; in the case of a common interest the order is joint and several (art. 97). Heirs, curators, representatives, etc., may be ordered to pay personally together with the losing party (art. 94).

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