THE TEMPORAL GOODS OF THE CHURCH
In providing for the spiritual well-being of people, the Church needs and uses temporal goods, in as much as its proper mission demands it. Therefore the Church has an inherent right to acquire, possess, administer, and alienate such temporal goods as are necessary for its proper ends, especially for divine worship, for works of apostolate and charity, and for the fitting support of ministers.
§ 1. The Roman pontiff is the supreme administrator and steward of all ecclesiastical goods.
§ 2. Under the supreme authority of the Roman pontiff, ownership of temporal goods of the Church belongs to that juridical person which has lawfully acquired them.
§ 1. The legal subject capable of acquiring, possessing, administering and alienating temporal goods in accordance with the norm of canon law, is whatever juridical person.
§ 2. All temporal goods which belong to juridical persons are ecclesiastical goods.
THE ACQUISITION OF TEMPORAL GOODS
Juridical persons can acquire temporal goods in any way that is just and is lawful for others as well.
The competent authority has the right to require from the Christian faithful whatever is necessary to attain the ends proper to the Church.
§ 1. To the extent that this is necessary for the good of the eparchy, the eparchial bishop has the right to levy, with the consent of the finance council, a tax on juridical persons subject to his authority. This tax should be proportionate to the income of each of the persons. No tax can be imposed on the offerings received on the occasion of the celebration of the Divine Liturgy.
§ 2. Taxes can be levied on physical persons only in accordance with the particular law of their Church sui iuris.
§ 1. The eparchial bishop has the right, within the limits set by the particular law of his own Church sui iuris, to fix the amount of the taxes for the various acts of the power of governance and of the offerings made on the occasion of the celebration of the Divine Liturgy, of the sacraments, of the sacramentals and of any other liturgical celebrations, unless common law provides otherwise.
§ 2. Patriarchs and eparchial bishops from various Churches who exercise their power within the same territory are to see, after consultation with each other, that same norms on taxes and offerings be established.
In all churches which are regularly open to Christ\’s faithful, the eparchial bishop may order that collections be taken for specified initiatives of the Church.
It is not lawful for physical and juridical persons to collect alms without the permission of the authority they are subject to and without the written consent of the hierarch of the place where the alms are collected.
§ 1. The offerings given for a specified purpose can be applied only for that same purpose.
§ 2. Unless the contrary is clear, the offerings given to the moderators or administrators of any juridical person are presumed to have been made to the juridical person itself.
§ 3. These offerings cannot be refused without a just reason and, in matters of greater importance, without the permission of the hierarch; with due regard to the prescriptions of can. 1042, the permission of the same hierarch is required for the acceptance of those offerings to which are attached some qualifying obligation or condition.
The Church recognizes prescription, in accordance with the norms of cann. 1540-1542, also for temporal goods.
If sacred objects, that is, those things which are destined for divine worship through dedication or a blessing, are privately owned, they may be acquired by private persons by means of prescription, but they may not be used for profane uses unless they have lost their dedication or blessing; if, however, they belong to an ecclesiastical juridical person, they can be acquired only by another ecclesiastical juridical person.
Immovable property, precious movable property, that is, those things which are especially important due to artistic, historical or material value, personal or real rights and claims, which belong to the Apostolic See, are prescribed after a period of one hundred years; those which belong to some Church sui iuris or to an eparchy are prescribed after a period of fifty years; those which belong to another juridical person are prescribed after a period of thirty years.
§ 1. Every authority is under the grave obligation to see that the temporal goods acquired by the Church be registered in the name of the juridical person to which they belong, with due regard for the prescriptions of civil law which safeguard the rights of the Church.
§ 2. If civil law does not allow temporal goods to be registered in the name of a juridical person, every authority is to ensure that, having consulted experts in civil law and the competent council, the rights of the Church remain unimpaired by adopting ways and means that are valid in civil law.
§ 3. These prescriptions are to be observed even as regards the temporal goods lawfully possessed by a juridical person, but whose acquisition is not yet confirmed by documents.
§ 4. The immediately higher authority is bound to urge the observance of these prescriptions.
§ 1. Each eparchy, in accordance with the particular law of its Church sui iuris, is to have a special fund which collects goods and
offerings for the purpose of providing appropriately for the fitting and fundamentally equal support of all the clerics who serve the eparchy, unless they are otherwise catered for.
§ 2. Where there is as yet no properly organized system of insurance, social security and health welfare for the clergy, the particular law of each Church sui iuris is to provide for the erection of institutes that safeguard these benefits under the vigilance of the local hierarch.
§ 3. To the extent that it is required, a common reserve fund is to be established in each eparchy in the manner determined by the particular law of the respective Church sui iuris. The scope of this fund is to enable the eparchial bishop to fulfil his obligations towards other persons who serve the Church and to meet various needs of the eparchy; this fund can also be the means through which wealthier eparchies can aid poorer ones.
THE ADMINISTRATION OF ECCLESIASTICAL GOODS
§ 1. It is for the eparchial bishop to supervise the administration of all the ecclesiastical goods which are within the boundaries of the eparchy and are not subtracted from his power of governance, without prejudice to lawful titles giving him greater rights.
§ 2. Taking into account rights, lawful customs and the circumstances, hierarchs are to ensure that by issuing appropriate instructions within the limits of common law and of the particular law of their Church sui iuris, the entire administration of ecclesiastical goods is properly organized.
Unless the law provides otherwise, the administration of the ecclesiastical goods of a juridical person is the responsibility of the one who immediately governs it.
§ 1. An administrator cannot validly perform an act that goes beyond the limits and manner of ordinary administration, except with the written consent of the competent authority.
§ 2. The statutes are to determine what acts go beyond the limits and manner of ordinary administration. If, however, the statutes are silent on this point, it is the competence of the authority to whom the juridical person is immediately subject, after consulting the competent council, to determine such acts.
§ 3. Except and to the extent that it is to its benefit, a juridical person is not held responsible for the invalid acts of its administrators.
Before taking office, an administrator of ecclesiastical goods must:
1° promise before the hierarch or his delegate to discharge his office faithfully;
2° sign an accurate inventory, reviewed by the hierarch, of the ecclesiastical goods committed to his administration.
One copy of the inventory of ecclesiastical goods is to be kept in the archives of the juridical person to which they belong, the other copy is to be kept in the archives of the eparchial curia; any change whatever which the stable patrimony of that juridical person may undergo is to be noted on each copy.
The authorities must see to it that the administrators of ecclesiastical goods furnish appropriate bonds that are valid in civil law, so that the Church may suffer no harm on the death of the administrators or their cessation from office.
§ 1. Every administrator of ecclesiastical goods is bound to discharge his office with the diligence of a good householder.
§ 2. Therefore he especially must:
1° be vigilant that no ecclesiastical goods entrusted to his care are in any way lost or suffer damage; to this end, they are to arrange insurance contracts, insofar as this is necessary;
2° observe the prescriptions of both canon and civil law as well as the stipulations of the founder, donor or lawful authority; he must especially be on guard lest the Church should suffer harm through the non-observance of civil law;
3° accurately collect the income and produce of goods when they are due, safeguard them once collected and expend them according to the wishes of the founder or lawful norms;
4° see to it that the interest that is due on a loan or mortgage is paid at the fixed time and take care that the capital is suitably repaid;
5° after payment of expenses invest the eventual surplus money with the consent of the hierarch, if investment can be profitable for the goals of the Church or of the juridical person;
6° keep the entries of income and expenditure well organized;
7° draw up a report on his administration at the end of each year;
8° keep in order and preserve in an archive the documents establishing the rights of the juridical person to its ecclesiastical goods; where it can be done conveniently, deposit authentic copies in the archives of the eparchial curia.
§ 3. It is earnestly recommended that administrators draw up each year a budget of income and expenditure. Particular law can make this an obligation and determine more precisely how it is to be presented.
From the movable goods which do not pertain to the stable patrimony an administrator of ecclesiastical goods is not to make donations except moderate ones according to lawful custom, unless it is for a just cause of piety or charity.
The administrators of ecclesiastical goods:
1° in making contracts of employment are accurately to observe also, according to the principles taught by the Church, the civil law relating to labour and social life;
2° are to pay to their employees a just remuneration which would fittingly provide for their needs and those of their dependants.
§ 1. Administrators of ecclesiastical goods must submit an annual account of their administration to their hierarch. Any contrary custom is reprobated.
§ 2. Of the temporal goods given to the Church, administrators of ecclesiastical goods are to render an account publicly in the manner laid down by particular law, unless the local hierarch determines otherwise for a serious reason.
Administrators of ecclesiastical goods may not, in the name of a juridical person, either institute or contest legal proceedings in a civil court without the permission of their hierarch.
Administrators of ecclesiastical goods who arbitrarily relinquish their office or function, are bound to restitution, if their arbitrary withdrawal occasions harm to the Church.
CONTRACTS AND ESPECIALLY ALIENATIONS
Whatever the civil law of the territory where the contract is entered into establishes about contracts, both generally and specifically, and about the rescinding of contracts, is to be observed in canon law with the same effects in matters subject to the power of the Church.
§ 1. In order to alienate ecclesiastical goods which through lawful designation constitute the stable patrimony of the juridical person, it is required that there be:
1° a just reason such as urgent necessity, evident advantage, or a religious, charitable or pastoral reason;
2° an evaluation in writing by experts of the goods to be alienated;
3° in cases specified in law the written consent of the competent authority, without which the alienation is invalid.
§ 2. Other safeguards prescribed by competent authority are also to be observed to avoid loss to the Church.
§ 1. When the value of the ecclesiastical goods proposed for alienation falls between the minimum and the maximum amount fixed by the synod of bishops of the patriarchal Church or by the Apostolic See, the consent is required:
1° of the finance council and the college of consultors of the eparchy for the goods of the eparchy;
2° of the eparchial bishop, who needs in each case the consent of the finance council and the college of eparchial consultors for the goods of juridical persons subject to the eparchial bishop;
3° of the authority determined in the typicon or the statutes for goods of juridical persons not subject to the eparchial bishop.
§ 2. In patriarchal Churches, if the value of goods exceeds the maximum amount fixed by the synod of bishops of the patriarchal Church, but is not double, the consent is required:
1° of the patriarch subject to the consent of the permanent synod, for the goods of an eparchy within the territorial boundaries of the patriarchal Church, unless the particular law of that Church states otherwise;
2° of the eparchial bishop and of the patriarch subject to the consent of the permanent synod for goods of a juridical person subject to an eparchial bishop who exercises his power within the territorial boundaries of the patriarchal Church;
3° of the patriarch subject to the consent of the permanent synod for the goods of a juridical person which is not subject to an eparchial bishop, even if that juridical person be of pontifical law, but is located within the territorial boundaries of the patriarchal Church.
§ 3. In a patriarchal Church, if the value of the goods is more than double the maximum amount fixed by the synod of bishops of the patriarchal Church, and in case of precious goods or of goods donated to the Church from a vow,
§ 2 is to be followed but the patriarch needs the consent of the same synod.
§ 4. In other cases the consent of the Apostolic See is required, if the value of the goods exceeds the sum fixed or approved by the Apostolic See; so too in case of precious goods or goods donated to the Church by reason of a vow.
To alienate the temporal goods of the patriarchal Church or of the eparchy of the patriarch, the patriarch needs:
1° as regards the goods of the patriarchal Church, the counsel of the permanent synod, if the value of the goods is between the minimum and the maximum amount fixed by the synod of bishops of the patriarchal Church; but if there is only question of the goods of the eparchy of the patriarch, can. 1036, § 1, n. 1 is to be followed;
2° the consent of the permanent synod if the value of the goods exceeds but is not double the maximum amount established by the synod of bishops of the patriarchal Church;
3° the consent of the synod of bishops of the patriarchal Church if the value of the goods is more than double the value or if the case involves precious goods or those things given to the Church by reason of a vow.
§ 1. Those whose counsel, consent or confirmation is required by law for the alienation of ecclesiastical goods shall not give their advice, consent or confirmation before having been thoroughly informed on the economic situation of the juridical person whose temporal goods are proposed for alienation as well as on previous alienations.
§2. Counsel, consent and confirmation are considered as not to have been given, unless the alienations already made are mentioned in the petition.
For any kind of alienation, the consent of all who have an interest in it is required.
If ecclesiastical goods have been alienated contrary to the prescriptions of canon law, but the alienation is valid in civil law, the higher authority of the person who alienated is to weigh carefully all the circumstances and decide whether and what action is to be taken, by whom and against whom, to vindicate the rights of the Church.
Unless they are of little value, ecclesiastical goods are not to be sold or leased to the administrators themselves or to their relatives up to the fourth degree of consanguinity or affinity, without the special permission of the authority mentioned in cann. 1036 and 1037.
Canons 1035 -1041 must be observed not only in alienation, but also in any business transaction in which the patrimonial condition of a juridical person is liable to become worse.
PIOUS WILLS AND PIOUS FOUNDATIONS
§ 1. Those who by natural law or by canon law can freely dispose of their goods can leave them to pious causes either by an act inter vivos or by an act mortis causa.
§ 2. In the last wills made in favour of the Church, if possible, the prescriptions of civil law are to be observed; if these prescriptions have not been observed, the heirs are to be advised of their obligation to fulfill the wishes of the testator.
The dispositions of Christ\’s faithful who give or leave their goods to pious causes whether by an act inter vivos or by an act mortis causa, once lawfully accepted, are to be most carefully implemented even as regards the manner of the administration and the expending of the goods, without prejudice to the provisions of can. 1045.
§ 1. The hierarch is the executor of all pious dispositions, whether made mortis causa or inter vivos.
§ 2. By this right the hierarch can and must be vigilant, even by making visitations, that pious dispositions are fulfilled. Other executors must render him an account when they have accomplished their task.
§ 3. If any clause contrary to this right of the hierarch is added to a last will, it is to be regarded as not added.
§ 1. A person who has received goods in trust for pious causes whether by an act inter vivos or by an act mortis causa, must inform his hierarch of his trust and apprise him of all the items of goods in question along with the obligations attached to them. If the donor has expressly and absolutely forbidden this, the trust is not to be accepted.
§ 2. The hierarch must demand that the goods given in trust be safely preserved and, in accordance with can. 1045, §2, supervise the execution of the pious disposition.
§ 3. In case of goods given in trust to a member of a religious institute or of a society of common life in the manner of religious, which have been destined for the churches of the place or of the eparchy, or for the Christian faithful domiciled there, or for the support of pious causes, the hierarch mentioned in §§1 and 2 is the hierarch of the place.
§ 1. In law pious foundations are:
1° autonomous pious foundations, that is, aggregates of things destined for works of piety, of apostolate or of charity, whether spiritual or temporal, and erected as a juridical person by competent authority;
2° non-autonomous pious foundations, that is, temporal goods given in whatever way to a juridical person and carrying with them a long-term obligation, for such period as to be determined by particular law, to pursue the purposes mentioned in n. 1 using the annual income.
§ 2. If the temporal goods of a non-autonomous foundation are entrusted to a juridical person subject to an eparchial bishop, they are, on the expiry of the period determined, to be destined to the fund mentioned in can. 1021,
§1, unless another intention was expressly manifested by the donor; otherwise they fall to that juridical person.
§ 1. Autonomous pious foundations can be erected only by an eparchial bishop or another higher authority.
§ 2. For a non-autonomous foundation to be validly accepted by a juridical person, the written consent of that person\’s own hierarch is necessary. The hierarch is not to give his consent until he has lawfully ascertained that the juridical person can fulfill the new obligation as well as those already undertaken. He is also to watch out that the income fully corresponds to the obligations attached, in accordance with the customs of his Church sui iuris.
§ 3. It is for particular law to determine other conditions without which pious foundations cannot be erected or accepted.
The hierarch who erected a pious foundation or gave his consent to the acceptance of one, is immediately to designate a safe place to deposit the money and the movable goods assigned as an endowment, so that the money or the value of the movable goods is safeguarded. As soon as possible they are to be carefully and profitably invested for the benefit of the foundation with an express and specific mention of the obligations undertaken. The investment is to be made in accordance with the prudent judgment of the hierarch after consulting those with an interest and the competent council.
One copy of the document of foundation is to be preserved in the archive of the eparchial curia and another copy in the archive of the juridical person.
§ 1. Once the provisions of cann. 1044-1046 and 1031 have been observed, a list of obligations arising from the pious foundations is to be drawn up and displayed in a conspicuous place, so that the obligations to be fulfilled are not forgotten.
§ 2. A register is to be kept by the parish priest or the rector of the church, in which each of the obligations, their fulfillment and the offerings are recorded.
§ 1. The reduction of obligations of celebrating the Divine Liturgy is reserved to the Apostolic See.
§ 2. If this is expressly provided for in the document of foundation, the hierarch can, because of the diminution of income, reduce the obligations of celebrating the Divine Liturgy.
§ 3. The eparchial bishop has the power, because of the diminution of income and for as long as this persists, to reduce the number of celebrations of the Divine Liturgy to the current lawful rate of offerings in the eparchy, provided there is no one who has an obligation to increase the offering and can actually be made to do so.
§ 4. The eparchial bishop has also the power to reduce the obligations of celebrating the Divine Liturgy which weigh on ecclesiastical institutes, if the income is no more sufficient to achieve the objectives that could once be obtained at the time the obligations were accepted.
§ 5. The superiors general of clerical religious institutes or societies of common life in the manner of religious of pontifical or patriarchal law also have the powers mentioned in §§3 and 4.
§ 6. The eparchial bishop can delegate the powers mentioned in §§3 and 4 only to his coadjutor bishop, auxiliary bishop, protosyncellus or syncellus, any subdelegation being excluded.
The same authorities mentioned in can. 1052 have the further power to transfer for a just reason the obligations of celebrating the Divine Liturgy to days or institutes different from those determined in the foundation.
§ 1. If the hierarch has been expressly authorized by the founder, he may, but only for a just and necessary reason, reduce, moderate or commute the dispositions of Christ\’s faithful who give or leave their goods to pious causes.
§ 2. If it has become impossible to carry out the obligations because of the diminution of income or for some other reason but through no fault of the administration, the hierarch can diminish these obligations equitably after consulting those concerned and the competent council, keeping however in the best way possible the disposition of the founder and without prejudice to can. 1052.
§ 3. In all other cases, the Apostolic See or the patriarch is to be approached. The latter, however, may act only with the consent of the permanent synod.
TRIALS IN GENERAL
§ 1. The objects of a trial are:
1° to prosecute or to vindicate the rights of physical or juridical persons, or to declare juridical facts;
2° to impose penalties for offences.
§ 2. In controversies arising from an act of executive power of governance, the higher authority alone is competent in accordance with cann. 996-1006.
In cases which are reserved to a dicastery of the Apostolic See, the tribunals should follow the norms issued by that dicastery.
In the causes of the servants of God for their canonization as saints, the special norms determined by the Roman Pontiff are to be observed.
THE COMPETENT FORUM
The Roman Pontiff is judged by no one.
§ 1. In virtue of the primacy of the Roman Pontiff, any of Christ\’s faithful may freely refer their case to the Roman Pontiff at any stage or grade of the trial. Being the supreme judge for the entire Catholic world, he judges either personally or through tribunals of the Apostolic See or through judges delegated by him.
§ 2. This referral to the Roman Pontiff, however, does not suspend the exercise of power by a judge who has already begun to hear a case except in the case of an appeal. The judge can, therefore, continue with the trial up to the definitive judgement, unless it is established that the Roman Pontiff has reserved the case to himself.
§ 1. The Roman Pontiff alone has the right to judge:
2° bishops in penal cases;
3° heads of State;
4° other cases which he has reserved to himself.
§ 2. With the exception of bishops exercising their power within the territorial boundaries of the patriarchal Church, other bishops are tried in contentious cases by the tribunal designated by the Roman Pontiff, without prejudice to can. 1066, §2.
§ 3. A judge cannot review an act or document which the Roman Pontiff has specifically confirmed, without his prior mandate.
Persons who do not have a higher authority below the Roman Pontiff, whether they are physical persons not ordained bishops or juridical persons, must be summoned before the tribunals of the Apostolic See, without prejudice to can. 1063, §4, nn. 3 and 4.
§ 1. The synod of bishops of the patriarchal Church, with due regard for the competence of the Apostolic See, is the High Tribunal within the territorial boundaries of the patriarchal Church.
§ 2. The synod of bishops of the patriarchal Church must elect from among its members by secret ballot a general moderator for the administration of justice as well as two bishops, who along with him as president will make up a tribunal and hold office for a five-year term. If one of these three bishops is party in a case, or is unable to attend, the patriarch with the consent of the permanent synod is to substitute for him another bishop; likewise, if any of them has been objected to, the patriarch is to act in like manner with the consent of the permanent synod.
§ 3. This tribunal is competent to try the contentious cases, whether of eparchies or of bishops, even titular bishops.
§ 4. Any appeal in these cases is to the synod of bishops of patriarchal Church. There is no further appeal, without prejudice to can. 1059.
§ 5. The general moderator for the administration of justice has the right of vigilance over all tribunals located within the territorial boundaries of the patriarchal Church, as well as the right of decision if objection is raised against some judge of an ordinary tribunal of the patriarchal Church.
§ 1. The patriarch must erect an ordinary tribunal for the patriarchal Church, different from the tribunal of the patriarch\’s eparchy.
§ 2. This tribunal is to have its own president, judges, promoter of justice, defenders of the bond as well as other necessary officials, appointed by the patriarch with the consent of the permanent synod. The president, the judges, the promoter of justice and the defenders of the bond cannot be removed from office except by the synod of bishops of the patriarchal Church. The patriarch can, however, accept on his own their resignation from office.
§ 3. This tribunal is the appellate tribunal in second and subsequent grades, with the judges serving in rotation, for cases already judged by lower tribunals. This tribunal has also the rights of a metropolitan tribunal in those areas of the patriarchal Church where provinces have not been established.
§ 4. This tribunal is competent to judge in the first and subsequent grades, with the judges serving in rotation, the cases:
1° of exarchs and patriarchal delegates who are not bishops;
2° of physical or juridical persons immediately subject to the patriarch;
3° of institutes of consecrated life of pontifical law;
4° of superiors of institutes of consecrated life of pontifical law, who do not have in the same institute a superior endowed with judicial power;
5° those other cases reserved to this tribunal by particular law.
§ 1. The metropolitan tribunal which is not distinct from the tribunal of the eparchy of the metropolitan is the appellate tribunal for sentences of the eparchial tribunals.
§ 2. In cases in first grade tried before the metropolitan or another eparchial bishop for whom there is no superior authority below the Roman Pontiff, the appeal is to be made to the tribunal which the metropolitan or eparchial bishop has designated in a stable manner, with the approval of the Apostolic See, with due regard for cann. 139 and 175.
The tribunal of third grade is the Apostolic See, unless common law expressly provides otherwise.
§ 1. In every eparchy, the eparchial bishop is the judge of first grade for all cases not expressly excepted by law.
§ 2. In cases concerning the rights or the temporal goods of a juridical person represented by the eparchial bishop, the appellate tribunal judges in first grade, with due regard for can. 1062, §3.
§ 1. A tribunal of first grade for several eparchies of the same Church sui iuris may be erected by the patriarch with the consent of the eparchial bishops concerned of eparchies situated within the territorial boundaries of the patriarchal Church; in other cases, it may be erected by the eparchial bishops who have consented to this and with the approval of the Apostolic See.
§ 2. This tribunal should be erected if the individual eparchial bishops are unable for whatever reason to erect their own tribunal; within the territorial boundaries of the patriarchal Church, if such is the case, this tribunal is to be erected by the synod of bishops of the patriarchal Church.
§ 3. In eparchies for which such a tribunal has been erected, a collegiate eparchial tribunal cannot be erected validly.
§ 4. The group of eparchial bishops who consented to having such a tribunal, or an eparchial bishop elected by them, has all the powers which an eparchial bishop has regarding his own tribunal. If this tribunal was established by the synod of bishops of the patriarchal Church or by the Apostolic See, the norms determined by the synod or by the Apostolic See are to be observed.
§ 5. Appeals from this tribunal are, within the territorial boundaries of the patriarchal Church, to the ordinary tribunal of the patriarchal Church; in other cases, to the tribunal designated in a stable manner by the group of bishops mentioned in §4, with the approval of the Apostolic See, or to the tribunal designated by the Apostolic See.
§ 1. The eparchial bishops of various Churches sui iuris exercising power within the same territory, may agree among themselves to establish a common tribunal to adjudicate contentious or penal cases of the Christian faithful subject to one or other of these eparchial bishops.
§ 2. If suitable judges and other tribunal officers are lacking, the eparchial bishops are to ensure that a common tribunal is established.
§ 3. The eparchial bishops who have consented to having a common tribunal are to designate one from among them, who has the powers which an eparchial bishop has regarding his own tribunal.
§ 4. Appeals from the sentences of a first grade common tribunal are to the tribunal designated in a stable manner by the Apostolic See.
§ 1. Controversies between physical or juridical persons of the same institute of consecrated life, except secular institutes, in which superiors possess the power of governance, are to be heard before the judge or the tribunal determined in the typicon or the statutes of the institute.
§ 2. Except cases concerning secular institutes, if the controversy arises between physical or juridical persons of various institutes of consecrated life, or even of the same institute of eparchial law or of another, in which the superior does not possess the power of governance, or between a member and a juridical person of an institute of consecrated life and any other physical or juridical person, the eparchial tribunal judges in first grade.
Any authority that erects a tribunal is to ensure that the tribunal has its own statutes approved by the same authority, in which must be determined the manner of appointing judges and other officers, the duration of their appointment, their remuneration and all the other requisites of law.
Every tribunal has the right to call upon the assistance of another tribunal of any Church in order to carry out certain procedural acts, except, however, those which involve decisions to be made by the judges.
The incompetence of lower judges is absolute in the cases mentioned in cann. 1060, 1061, 1062, §3 and 1063, §4; the incompetence of the judge is also absolute if competency by reason of the grade of the trial is not observed.
§ 1. No one can be brought to trial in the first grade except before a judge who is competent in virtue of one of the titles determined in common law.
§ 2. The incompetence of a judge who has none of these titles is termed relative.
§ 3. Unless the law expressly provides otherwise, the plaintiff follows the forum of the respondent. But if the respondent has more than one forum, the plaintiff may opt for any one of them.
Anyone can be brought to trial before the tribunal of domicile or quasi-domicile.
§ 1. A person who has not even a quasi-domicile has a forum in the place of actual residence.
§ 2. A person whose domicile, quasi-domicile or place of residence is unknown, can be brought to trial in the forum of the plaintiff, provided no other lawful forum is available.
By reason of the location of a litigated thing, a party can be brought to trial before the tribunal of the place where the thing is located whenever the action concerns that thing directly, or it is an action for the recovery of possession.
§ 1. By reason of contract a party can be brought into court before the tribunal of the place where the contract was entered or must be fulfilled, unless the parties agree to choose another tribunal.
§ 2. If the case revolves around obligations which arise from another title, the party can be brought into court before the tribunal of the place where the obligation originated or is to be fulfilled.
In penal cases the accused, even if absent, can be cited before the tribunal of the place where the offence was perpetrated.
A party can be brought into court:
1° in cases which concern administration before the tribunal of the place where the administration was conducted;
2° in cases which concern inheritances or pious legacies before the tribunal of the last domicile, quasi-domicile or place of residence of the person whose inheritance or pious legacy is the object of the action, with due regard for can. 1075, § 2 unless it is a question of the mere execution of a legacy, which is to be examined according to the ordinary norms of competence.
If a judge is not competent by virtue of any of the above mentioned titles and yet a case is introduced before him, he obtains competence if both the parties and the authority to whom the tribunal is immediately subject consent.
Unless a prescription of the law blocks this, by reason of connection cases which are interrelated are to be tried by one and the same tribunal and in the same procedure.
If two or more tribunals are equally competent, by reason of prevention the tribunal which first lawfully summoned the respondent, has the right to hear the case.
§ 1. A conflict between judges as to which of them is competent to hear a case, is to be decided by the appellate tribunal of that judge before whom the action was first advanced by a libellus introducing the suit.
§ 2. If either of the tribunals is the appellate tribunal of the first other, the conflict is to be decided by the tribunal of the third instance for the tribunal before which the action was first introduced.
§ 3. From the decisions in these conflicts there is no appeal.
§ 1. The following cases are reserved to a collegiate tribunal of three judges:
1° cases concerning the bond of sacred ordination;
2° cases concerning the bond of marriage, with due regard for cann.1372 – 1374;
3° penal cases concerning offences which entail the penalties of major excommunication, privation of office, reduction to an inferior degree or deposition;
4° cases which are determined in the particular law of the proper Church sui iuris.
§ 2. Other cases are to be heard by a sole judge, unless the eparchial bishop reserves a certain case to a college of three judges.
§ 3. If it happens that a collegiate tribunal cannot be established for a trial of first instance, while this impossibility lasts, the patriarch, having consulted the permanent synod, can permit the eparchial bishop to entrust cases to a single clerical judge who, if possible, is to employ an assessor and an auditor; likewise the metropolitan who presides over a metropolitan Church sui iuris as well as the metropolitan of a patriarchal Church constituted outside the territorial boundaries of the patriarchal Church may do likewise, in both situations having consulted the two eparchial bishops who are senior by episcopal ordination; in other instances, the matter is to be referred to the Apostolic See.
§ 1. A collegiate tribunal must proceed collegially and make decisions by majority vote; this is for validity in the matter of:
1° the rejection of a petition for counter action or for incidental case;
2° the settlement of a recourse against the decree of the presiding judge;
3° the sentence, even an interlocutory one, as well as decrees which have the same effect as a definitive sentence.
§ 2. Other procedural acts are to be carried out by the ponens, unless the college has reserved to itself, though not for validity, certain acts.
§ 3. If the case was heard in the first grade collegially, in the appellate grade also it is to be settled collegially and not by a smaller number of judges; if by a single judge, in the appellate grade also it is to be settled by a single judge, except in the case mentioned in can.1084, §3.
THE OFFICERS OF THE TRIBUNAL
THE JUDICIAL VICAR, JUDGES, AND AUDUORS
§ 1. The eparchial bishop is bound to appoint a judicial vicar with ordinary judicial power, distinct from the protosyncellus, unless the smallness of the eparchy or the small number of cases suggests otherwise.
§ 2. The judicial vicar constitutes one tribunal with the eparchial bishop, but he cannot judge cases which the eparchial bishop has reserved to himself.
§ 3. The judicial vicar can be given assistants whose title is adjutant judicial vicars.
§ 4. Both the judicial vicar and the adjutant judicial vicars must be priests of unimpaired reputation, holding doctorates or at least licentiates in canon law, known for prudence and zeal for justice and not less than thirty years of age.
§ 1. In the eparchy the eparchial bishop is to appoint eparchial judges, who are to be clerics.
§ 2. The patriarch, having consulted the permanent synod, or the metropolitan who presides over a metropolitan Church sui iuris, having consulted the two eparchial bishops senior by episcopal ordination, can permit other members of the Christian faithful to be appointed judges; when it is necessary, one of them can be employed to form a collegiate tribunal; in other cases, the matter is to be referred to the Apostolic See.
§ 3. The judges are to be of unimpaired reputation, and possess doctorates, or at least licentiates, in canon law, and be known for prudence and zeal for justice.
§ 1. The judicial vicar, the adjutant judicial vicar and the other judges are to be appointed for a definite period of time.
§ 2. If this period of time elapses during the vacancy of the eparchial see, they cannot be removed, but remain in office until the new eparchial bishop provides for the matter.
§ 3. If the judicial vicar is appointed by the eparchial administrator, when the new eparchial bishop arrives, he needs confirmation.
In any trial a single judge can engage two assessors from among the Christian faithful of good repute, to serve as his consultors.
§ 1. The judicial vicar is to designate in order by rotation two judges from among the eparchial judges, who together with the presiding judge will compose the collegiate tribunal, unless the eparchial bishop in his prudence thinks a different procedure to be more advisable.
§ 2. Once judges have been designated, the judicial vicar is not to replace them, except for a very grave reason, which must be expressed for validity in a decree.
§ 1. The judicial vicar or the adjutatnt judicial vicar presides over a collegiate tribunal in so far as this is possible.
§ 2. The president of a collegiate tribunal must assign one of the collegiate judges as the ponens, unless he wishes to fulfil this function himself.
§ 3. For a just cause the same president may substitute another in place of the ponens.
§ 4. The ponens reports on the case at the meeting of the judges and puts the sentence into writing.
A single judge has all the rights of the tribunal and of the presiding judge.
§ 1. A judge or the president of a collegiate tribunal can designate an auditor to carry out the instruction of the case, selecting one either from among the judges of the tribunal or from among the Christian faithful approved for this office by the eparchial bishop.
§ 2. The eparchial bishop can approve for the office of auditor, members of the Christian faithful who are recognized for their good character, prudence and learning.
§ 3. The task of the auditor is solely to gather the proofs in accordance with the mandate of the judge and, when gathered, to submit it to the judge. Unless the mandate of the judge is to the contrary, the auditor can in the meantime decide what proofs are to be collected and how they are to be collected, should any question arise about these things while the auditor is discharging his or her office.
THE PROMOTER OF JUSTICE, THE DEFENDER
OF THE BOND AND THE NOTARY
A promoter of justice is to be appointed in the eparchy for penal cases, and for contentious cases in which the public good may be at stake. The promoter of justice is bound by the obligation to safeguard the public good.
§ 1. In contentious cases it is for the eparchial bishop to judge whether the public good is at stake or not, unless the intervention of the promoter of justice is prescribed by law or it is clearly necessary from the nature of things.
§ 2. If the promoter of justice has intervened in an earlier instance of a trial, such intervention is presumed to be necessary in a subsequent instance.
A defender of the bond is to be appointed in the eparchy for cases concerning the nullity of sacred ordination or the nullity or dissolution of marriage. The defender of the bond is bound by the obligation to present and expound all that can reasonably be argued against nullity or dissolution.
In cases in which the presence of the promoter of justice or of the defender of the bond is required, the acts are null if they were not cited. This does not apply if, although not cited, they were in fact present or, having examined the acts, were able, at least before the sentence, to fulfill their role.
Unless common law expressly provides otherwise:
1° whenever the law requires the judge to hear the parties or either of them, the promoter of justice and the defender of the bond also must be heard if they are engaged in the trial;
2° whenever the submission of a party is required for the judge to decide something, the submission of the promoter of justice or the defender of the bond engaged in the trial has the same force.
§ 1. It is for the eparchial bishop to nominate the promoter of justice and the defender of the bond; in non-eparchial tribunals they are nominated in accordance with the tribunal\’s statutes, unless the law provides otherwise.
§ 2. The promoter of justice and the defender of the bond are to be members of the Christian faithful of good repute, with a doctorate or at least licentiate in canon law, and esteemed for prudence and zeal for justice.
§ 1. The same person can hold the office of promoter of justice and of defender of the bond but not in the same case.
§ 2. The promoter and defender can be appointed for all cases or for particular cases; they can however, be removed by the eparchial bishop for a just cause.
§ 1. A notary is to be present at every hearing, so that the acts are to be considered null unless signed by the notary.
§ 2. Acts drawn up by notaries have the force of authentic attestation.
THE OFFICERS OF THE TRIBUNALS TAKEN FROM DIFFERENT EPARCHIES OR CHURCHES SUI IURIS
§ 1. Judges and other officers of the tribunals may be chosen from any eparchy, religious institute or society of common life in the manner of religious of the respective Church sui iuris or of a different Church sui iuris, with the written consent, however, of their own eparchial bishop or major superior.
§ 2. A delegated judge may, unless the mandate of delegation states otherwise, call upon the assistance of officers living within the territory of the person mandating.
THE OBLIGATIONS OF JUDGES AND OTHER TRIBUNAL OFFICIALS
§ 1. All Christ\’s faithful, especially bishops, are to strive earnestly, with due regard for justice, to ensure that lawsuits among the people of God are as much as possible avoided or are settled peacefully at the earliest.
§ 2. At the beginning of litigation, and indeed at any other time whenever some hope of a successful outcome is perceived, the judge is not to fail to exhort and to assist the parties to seek an equitable solution to their controversy by exchange of views; the judge is also to indicate suitable ways of reaching this goal, even making use of the services of serious-minded persons to mediate.
§ 3. If the case concerns the private good of the parties, the judge is to discern whether the controversy can be resolved advantageously through an extra judicial settlement or by referring it to arbitration.
§ 1. A judge who is competent must offer his ministry to any party lawfully requiring it.
§ 2. A judge can hear no case unless the party concerned or the promoter of justice has presented a petition in accordance with the norm of the canons.
A person who has taken part in a case as judge, promoter of justice, defender of bond, procurator, advocate, witness or expert, cannot afterwards in another grade of the trial validly resolve the same case as a judge or act as an assessor in the same grade.
§ 1. A judge is not to undertake the adjudication of a case in which the judge may have some interest due to consanguinity or affinity in any degree of the direct line and up to the fourth degree inclusive of the collateral line, due to functioning as a guardian or trustee, due to close friendship, due to great animosity, or due to a desire to make some profit or avoid some loss.
§ 2. In the same circumstances the promoter of justice, the defender of the bond, the assessor and the auditor must disqualify themselves from their office.
§ 1. If an objection is lodged against the judge of either an ordinary or delegated tribunal, even if he is competent, the exception is dealt with by the authority to which the tribunal is immediately subject, with due regard for can. 1062, §§ 2 and 5.
§ 2. If the eparchial bishop is the judge and an objection is lodged against him, he is to disqualify himself from judging.
§ 3. If the objection is lodged against other officers of the tribunal, the president of the collegiate tribunal or the single judge deals with this exception.
If the objection is accepted, the persons must be changed, but the grade of the court does not change.
§ 1. The issue of an objection is to be solved most expeditiously after having heard the parties.
§ 2. The acts posited by a judge prior to an objection are valid; but those acts posited after the objection has been moved must be rescinded if the party petitions within ten days from the acceptance of the objection; after the acceptance of the objection, the acts are invalid.
§ 1. In a matter which concerns private individuals only, a judge can proceed only at the request of a party; once a case has been legitimately introduced, however, a judge can and must proceed, even ex officio, in penal cases and in other cases which involve the public good of the Church or the salvation of souls.
§ 2. Furthermore, a judge can supply for the negligence of parties in furnishing proofs or in placing exceptions as often as it is judged necessary in order to avoid a seriously unjust sentence, with due regard for can. 1283.
Judges and tribunals are to see to it that, with due regard for justice, all cases are concluded as soon as possible so that in the first grade they are not prolonged beyond a year and on the appellate level beyond six months.
All persons who constitute a tribunal or assist it must make a promise that they will fulfill their function faithfully.
§ 1. Judges and tribunal personnel are always bound to secrecy in a penal case; they are also thus bound in a contentious case if the parties may be harmed by the revelation of some procedural act.
§ 2. They are also always bound and toward all people, to observe secrecy concerning the discussion among the judges in a collegiate tribunal before passing the sentence and concerning the various votes and opinions offered during the discussion; likewise all those to whom knowledge of the above shall come in any way are also bound to secrecy.
§ 3. Indeed, the judge can oblige the witnesses, the experts, the parties and their advocates or proxies to swear an oath to observe secrecy, whenever the nature of the case or of the proofs is such that the reputation of others would be put at risk if the acts or proofs are publicized, or give rise to quarrels, or cause or have any similar untoward consequence.
The judge and all tribunal officers are forbidden to accept any gifts whatsoever on the occasion of a trial.
§ 1. Judges can be punished by the competent authority with appropriate penalties, not excluding the deprivation of office, if, though certainly and obviously competent, they refuse to try a case; if, without any legal support, they declare themselves competent and hear and decide cases; if they breach the law of secrecy; or if, through deceit or serious negligence, they cause harm to the parties.
§ 2. The other officers of the tribunal and assistants also can be punished with the same penalties if they fail to discharge their office as above. The judge also is entitled to punish them all.
If the judge foresees that the plaintiff will probably disregard the ecclesiastical sentence, should it happen to go contrary to him, and that therefore the rights of the respondent would not be sufficiently safeguarded, he may at the request of the respondent or even ex officio oblige the plaintiff to furnish an appropriate security for the observance of the ecclesiastical sentence.
THE ORDER OF ADJUDICATION
Cases are to be heard in the order in which they were received and entered in the docket, unless a particular case among them needs to be dealt with more quickly than others. This is to be specified in a special decree giving supporting reasons.
§ 1. Defects which can render a sentence invalid can be introduced as an exception during any stage or grade of a trial; a judge can likewise declare them ex officio.
§ 2. Dilatory exceptions, especially those which concern the persons and the manner of the trial, are to be proposed before the joinder of the issue, unless they first emerged only after it; and they are to be settled as soon as possible.
§ 1. If an exception is proposed against the competence of the judge, the judge himself must deal with the matter.
§ 2. In the case of an exception concerning relative incompetence, if the judge pronounces for competence, the decision does not admit of appeal. It can, however, be challenged by a plaint of nullity, total reinstatement, or the opposition of a third party.
§ 3. But if the judge pronounces for incompetence, the party who deems adversely affected can refer to the appellate tribunal within fifteen usable days.
A judge who becomes aware at any stage of the trial that he or she is absolutely incompetent, must declare his or her incompetence.
§ 1. Exceptions to the effect that an issue has become an adjudged matter or has been agreed extra judiciously between the parties, and those other peremptory exceptions which are said to put an end to the suit, must be proposed and examined before the joinder of the issue. Whoever proposes them subsequently is not to be rejected but must pay the court costs unless the same party proves that the objection was not maliciously delayed.
§ 2. Other peremptory exceptions are to be proposed at the joinder of the issue and must be treated at their proper time in accordance with the norms governing incidental questions.
§ 1. Counter actions can validly be proposed only within thirty days of the joinder of the issue.
§ 2. Counter actions are to be dealt together with the principal action, that is, in the same grade of trial, unless it is necessary to deal with them separately or the judge deems this procedure more appropriate.
Questions concerning the guarantee of judicial expenses or the grant of free legal aid which has been requested from the beginning of the process, and other similar matters, must normally be dealt with before the joinder of the issue.
TIME LIMITS, DELAYS AND THE PLACE OF A TRIAL
§ 1. The time limits set by law for extinguishing the right to act cannot be extended nor validly shortened unless the parties request it.
§ 2. Before they have lapsed, however, other time limits can be extended by the judge for a just cause after hearing the parties or if they request it; such time limits, however, may never validly be shortened unless the parties agree.
§ 3. But the judge is to see to it that the trial is not overly prolonged by such extensions.
If the law does not establish time limits for the positing of procedural acts, the judge must determine them taking into consideration the nature of each act.
If the tribunal is closed on the day scheduled for a judicial act the time limit is extended to the first day following which is not a holiday.
To the extent that it is possible, the tribunal is to be in a permanent place which is open during specified hours according to the norms specified in particular law concerning this matter.
§ 1. A judge who has been forcibly expelled from his own territory or has been impeded in the exercise of judicial power there can exercise his power and render a sentence outside that territory; however, the eparchial bishop of the place should be informed of this fact by the judge.
§ 2. Besides the case mentioned in § 1, for a just cause and after hearing the parties, a judge can travel outside his own territory in order to acquire proofs with the permission of the eparchial bishop of the place he enters and at a site designated by the bishop.
PERSONS TO BE ADMITTED TO THE TRIAL AND THE MANNER OF PREPARING AND PRESERVING THE ACTS
§ 1. Unless the particular law of the Church sui iuris expressly provides otherwise, while cases are being heard before a tribunal, only those persons are to be present in court whom the law or the judge prescribes are necessary to expedite the process.
§ 2. After a warning has had no effect, a judge can punish with appropriate penalties all those who attend the trial and who are gravely lacking in the respect and obedience due to the tribunal. The judge can even suspend advocates and procurators from exercising their function in ecclesiastical tribunals.
If a person to be interrogated uses a language unknown to the judge or the parties, an interpreter designated by the judge and duly sworn is to be employed. The declarations are to be put into writing in the original language and a translation is to be added. An interpreter is also to be employed if a deaf or mute person must be interrogated, unless the judge should prefer that answers to the questions furnished be given in writing.
§ 1. All judicial acts, whether the acts of the case, that is, those acts which concern the merits of the question, or the acts of the process, that is, those which pertain to the formal procedure, must be put into writing.
§ 2. The individual pages of the acts are to be numbered and authenticated with a seal.
Whenever the signature of the parties or witnesses is required for judicial acts and a party or a witness cannot or will not sign them, this is to be noted in the acts; both the judge and the notary are to attest that the act has been read to the party or witness verbatim and that the party or witness either could not or would not sign it.
§ 1. At the completion of the trial documents which belong to private individuals must be returned but a copy of them is to be retained.
§ 2. The chancellor and notaries are forbidden to furnish a copy of judicial acts and of documents which have been acquired for the process without a mandate from the judge.
§ 3. Anonymous letters are to be destroyed and mention is not to be made of them in the acts; likewise signed writings and letters which add nothing to the merits of the case or are certainly calumnious are to be destroyed.
THE PETITIONER AND THE RESPONDENT
Anyone, whether baptized or unbaptized, has the right to bring an action before a court. A person who is lawfully summoned must respond.
Although a plaintiff or respondent has appointed a procurator or an advocate, they themselves are nevertheless bound to be present in person at the trial when the law or the judge prescribes it.
§ 1. Minors and those who lack the use of reason can stand in court only through their parents or guardians or curators.
§ 2. If the judge decides that their rights are in conflict with the rights of the parents, guardians or curators, or that the latter cannot satisfactorily safeguard the rights of the former, then they are to be represented in the trial by a guardian or curator appointed by the judge.
§ 3. But in spiritual cases and in cases connected with spiritual matters, if minors have attained the use of reason, they can act and respond without the consent of parents or guardian; if they have completed their fourteenth year of age, they can do so on their own; if not, through a curator appointed by the judge.
§ 4. Those debarred from the administration of their goods and those of infirm mind can stand in court personally only to respond concerning their own offences or by order of the judge. In all other matters they must act and respond through their curators.
A guardian or curator appointed by civil authority can be admitted by an ecclesiastical judge after consulting, if possible, the eparchial bishop of the person to whom the guardian or curator has been given. If there is no such guardian or curator, or it is not seen fit to admit the one appointed, the judge is to designate a guardian or curator for the case.
§ 1. Juridical persons stand in court through their legitimate representatives.
§ 2. If goods are at stake for whose alienation the consent or counsel or permission of some person is required, the same consent or counsel or permission is required also to begin the lawsuit or for the joinder of the issue.
§ 3. In the case where there is no representative or the representative is negligent, the hierarch himself can, either personally or through another, stand in court in the name of juridical persons subject to his power.
PROCURATORS FAR THE TRIAL AND ADVOCATES
§ 1. A party can freely appoint a procurator and advocate for himself or herself, but may also bring an action to the court and respond personally, unless the judge considers the services of a procurator or an advocate to be necessary.
§ 2. In a penal trial the accused must always have an advocate, either appointed personally or allocated by the judge.
§ 3. In a contentious trial which concerns minors or a case in which a public good is at stake, the judge is to appoint ex officio an advocate for a party who lacks one; marriage cases are excepted.
§ 1. A party can appoint only one procurator; the latter cannot appoint another as his or her substitute, unless permission to do so has been granted in writing.
§ 2. But if for some just reason several procurators are appointed by the same party, they are to be so designated that there is the right of prevention among them.
§ 3. Several advocates can, however, be appointed together.
The procurator and the advocate must have attained majority and be of good repute. The advocate must besides be a Catholic, unless the authority to which the tribunal is immediately subject permits otherwise, be a doctor in canon law or otherwise truly skilled, and approved by the same authority.
§ 1. Before undertaking their function, the procurator and the advocate must deposit an authentic mandate to the tribunal.
§ 2. To prevent the extinction of a right, however, the judge can admit a procurator though no mandate has been presented; if need be, a suitable security is to be furnished. However, the judge\’s act lacks all force if the procurator does not present a mandate within the peremptory time-limit to be set by the judge.
Without a special mandate, the procurator cannot validly renounce an action, an instance of trial or judicial acts, nor make a settlement, strike a bargain, submit to arbitration, or in general do anything for which the law requires a special mandate.
§ 1. For the removal of a procurator or advocate to take effect, it is necessary that they be informed and that the judge and the opposing party be notified of the removal if the joinder of the issue has already taken place.
§ 2. After a definitive sentence has been issued, the procurator retains the right and obligation to appeal unless the mandating party has renounced this.
For a grave reason, the procurator and the advocate can be debarred by a decree of the judge given either ex officio or at the request of a party. Recourse can always be made to the appellate tribunal.
§ 1. Both the procurator and the advocate are forbidden to bribe to win the suit, or bargain for excessive payment or for a share of the thing under litigation with the winning party. If they do so, any such agreement is null and they can be fined by the judge. Moreover, an advocate can be suspended from office and, in case of repeated offence, even removed from it and stricken from the register of advocates by the authority to whom the tribunal is immediately subject.
§ 2. The same penalties can be imposed on procurators and advocates who fraudulently exploit the law by withdrawing cases from tribunals which are competent, so that they may be judged more favourably by other tribunals.
Procurators and advocates who have betrayed their profession because of gifts, promises or any other consideration are to be suspended from the exercise of their office as patrons and are to be fined or punished with other suitable penalties.
In every tribunal, as far as possible, permanent legal representatives are to be appointed, who receive remuneration from that tribunal and who exercise the function of procurator or advocate, especially in marriage cases, on behalf of parties who may wish to choose them.
ACTIONS AND EXCEPTIONS
Every right whatsoever is reinforced not only by an action, unless otherwise expressly provided, but also by an exception, which is always available and of its very nature perpetual.
Every action is extinguished by prescription in accordance with the norm of law, or in another lawful way, except for actions concerning the status of persons, which are never extinguished.
Unless the law expressly provides otherwise, contentious actions are extinguished by prescription at the end of five years from the day when an action could first have been proposed, without prejudice to any relevant personal Statutes in force.
§ 1. Every penal action is extinguished by the death of the accused, by pardon granted by competent authority and by prescription.
§ 2. A penal action is extinguished by prescription after three years, except for:
1° offences reserved to the Apostolic See;
2° action against offences mentioned in cann. 1450 and 1453, which are extinguished
by prescription after five years;
3° offences not punishable under common law, if another time-limit of prescription has been determined in particular law.
§ 3. Prescription runs from the day on which the offence was committed, or, if the offence is permanent and habitual, from the day it ceased.
§ 1. An action to execute a penalty is extinguished by prescription if the guilty party was not notified of the judge\’s decree of execution within the time limits mentioned in can. 1152, which are to be reckoned from the day on which the condemnatory sentence became an adjudged matter.
§ 2. The same applies, with due observance of law, if the penalty was imposed by a decree outside a trial.
With the extinction of the penal action by prescription:
1° by that very fact is not extinguished a contentious action possibly arising from an offence and directed to the reparation of damages;
2° if the public good requires it, the hierarch may apply suitable administrative remedies, not excluding suspension from the exercise of sacred ministry or removal from office.
A plaintiff can bring several actions simultaneously against another person, concerning the same matter or different matters, provided they do not conflict with one another, nor exceed the competence of the tribunal that has been approached.
§ 1. The defendant can initiate a counter action against the plaintiff before the same judge and in the same trial, either by reason of the case\’s connection with the principal action, or in order to remove or mitigate the plaintiff\’s plea.
§ 2. A counter action to a counter action is not admitted.
The counter action is to be proposed to the judge before whom the principal action was initiated, even if the judge has been delegated for one case only, or is otherwise relatively incompetent.
§ 1. A person who with at least probable arguments has shown to have a right to something held by another, and the prospect of imminent danger of harm unless that thing itself is handed over for safekeeping, has the right to obtain from the judge its sequestration.
§ 2. In similar circumstances a person can obtain a restraint on another person\’s exercise of a right.
§ 1. The sequestration of an object is also admitted for the security of a debt, provided there is sufficient proofs of the creditor\’s right.
§ 2. Sequestration can also extend to the assets of a debtor which, under whatever title, are found to be in the keeping of others, as well as to the debts of the debtor.
The sequestration of an object, and restraint on the exercise of a right, can in no way be decreed if the harm that is feared can be repaired otherwise, and a suitable guarantee is given that it will be repaired.
The judge who grants the sequestration of an object, or the restraint on the exercise of a right, can first impose on the person to whom the grant is made to furnish guarantee to repair damages if the right is not proven.
In regard to the nature and effect of an action for possession, the civil law of the place where the thing whose possession is in question, is located, is to be observed.
§ 1. Whenever a petition is introduced to obtain provision for the livelihood of a person, the judge, having heard the parties, may determine, by a decree that is to be implemented immediately that, without prejudice to the right to be defined by the sentence, in the meantime the necessary aliment be furnished. Suitable guarantees may be laid down in the decree, if need be.
§ 2. Once a petition has been presented by a party or by the promoter of justice to obtain this decree, the judge, after hearing the other party, is to determine the matter most expeditiously, never later than ten days. After this period has run out to no avail, or if the petition has been rejected, recourse may be had to the authority to whom the tribunal is immediately subject, provided that this authority is not the judge himself, or, optionally, to the appellate judge who likewise shall determine the matter most expeditiously.
METHODS OF AVOIDING TRIALS
In an extra judicial settlement, the civil law of the place where the settlement is concluded, is to be observed.
§ 1. An extra judicial settlement cannot validly take place in cases concerning those things or those rights which pertain to the public good, or concerning other matters which the parties are unable to dispose of freely.
§ 2. But there can be an extra judicial settlement when ecclesiastical temporal goods are involved, provided that if the matter so requires, the formalities determined by law for the alienation of ecclesiastical goods are observed.
Unless otherwise expressly provided, each party is to pay one half of the expense incurred in reaching an extra judicial settlement.
The judge is not to undertake, at least normally, to negotiate the settlement but entrust it to another person who is an expert in law.
§ 1. Those who have a controversy between them may agree in writing to have the matter resolved by arbiters.
§ 2. The same may be agreed upon in writing by those who have entered into a contract or are entering into one, regarding controversies should any arise from that contract.
Controversies about which an extra judicial settlement is forbidden, cannot be validly referred to arbitration.
§ 1. One or more arbiters may be appointed, but of uneven number.
§ 2. Unless the arbiters have been designated by name, in the arbitration agreement itself at least their number should be determined and the manner fixed how they are to be nominated and substituted.
An arbitration agreement is null, if:
1° the norms determined for the validity of contracts which exceed ordinary administration have not been observed;
2° it was not consigned to writing;
3° the procurator agreed to the arbitration without special mandate, or the prescriptions of cann. 1169 or 1170 were violated;
4° the controversy did not arise or does not arise from a certain contract in accordance with the norms of can. 1168, §2.
The following cannot validly undertake the function of arbiter:
2° those under the penalty of excommunication, even minor, suspension or deposition;
3° members of institutes of religious life or societies of common life in the manner of religious without the permission of their superior.
The appointment of an arbiter has no effect unless he or she accepts the function in writing.
§ 1. If the arbiters were not designated in the arbitration agreement, or they have to be substituted and the parties or others to whom the designation was deferred disagree regarding all or some of the persons to be chosen, any party may commit the matter to the tribunal that is competent to decide the case in the first instance, unless the parties have agreed otherwise. And after having heard the other parties, the tribunal is to provide by decree.
§ 2. The same norm is to be observed if a party or a person neglects to designate an arbiter, provided that the party which goes to court designated its arbiters, in case it had to do so, at least twenty days before.
The tribunal mentioned in can. 1174, §1 shall examine the objection raised against arbiters, and, after hearing the arbiters in question and the parties, shall resolve the matter by decree. If the tribunal upholds the objection, it is to substitute other arbiters, unless the arbitration agreement provides otherwise.
§ 1. The obligations of the arbiters are to be determined in the arbitration agreement itself; so too those regarding the secrecy to be maintained.
§ 2. Unless the parties have specified otherwise, the arbiters are free to choose the procedure to be followed. This, however, is to be simple and the time limits brief, observing equity and taking account of the procedural laws.
§ 3. The arbiters do not have any coercive power whatever. If obliged by necessity, they have to defer the matter to the tribunal that is competent to hear the case.
§ 1. Incidental questions, should they arise, are to be resolved with a decree by the arbiters themselves.
§ 2. If a prejudicial question arises which cannot be matter for arbitration, the arbiters must suspend the process until the parties obtain a sentence regarding it from the judge and notify it to the arbiters. This sentence then becomes an adjudged matter or, if the dispute concerns the status of persons, a sentence that may be put into execution.
Unless the parties determined otherwise, the arbitral sentence is to be issued within six months of the day when the last of the arbiters accepted the appointment. The time limits may be prorogated by the parties.
§ 1. The arbitral sentence is given by majority vote.
§ 2. If the matter allows it, the sentence is to be written by the arbiters themselves in the form of a judicial sentence and signed by each of them. For its validity, it is required and it suffices that the majority of the arbiters sign the sentence.
§ 1. The arbiters have the right to be reimbursed for their expenses, unless the arbitral sentence is null due to their own grave fault. Regarding this affair they may demand appropriate guaranty.
§ 2. It is recommended that the arbiters offer their services gratuitously. If they do not, provision is to be made for their remuneration in the very arbitration agreement.
§ 1. The complete text of the arbitral sentence must be deposited within fifteen days at the chancery of the tribunal of the eparchy where the sentence was given. Within five days after it was deposited, unless it is evident that the arbitral sentence is vitiated by nullity, the judicial vicar is to issue, either personally or through another, a decree of confirmation, which is to be communicated immediately to the parties.
§ 2. If the judicial vicar refuses to issue this decree, the party concerned may have recourse to the appeal tribunal, which must resolve the matter very expeditiously. If, however, the judicial vicar remains silent for a full month, the same party can insist that he fulfill his duty. If he still remains silent for five days afterwards, the party may have recourse to the appellate tribunal, which too is to resolve the matter most expeditiously.
§ 3. If the arbitral sentence is evidently vitiated by nullity because matters prescribed for the validity of the arbitration agreement were neglected, the judicial vicar is to declare the nullity and to notify it to the parties as soon as possible. There is no recourse against this declaration.
§ 4. The arbitral sentence becomes an adjudged matter with the issue of the decree of confirmation, without prejudice to can. 1182.
§ 1. An appeal from an arbitral sentence is allowed only if the parties had agreed in writing that the sentence would be liable to this remedy. If they did so, within ten days of the notification of the sentence, the appeal is to be lodged before the judge who issued the decree of confirmation. If, however, another judge is competent to receive the appeal, the matter is to be prosecuted before him within a month.
§ 2. An arbitral sentence which admits of appeal becomes an adjudged matter in accordance with the norm of can. 1322.
The judge who issued the decree of confirmation deals with the following in accordance with the ordinary norm of law: the complaint of nullity against an arbitral sentence which has become adjudged matter; total reinstatement, if the injustice of the arbitral sentence is clearly established; the opposition of a third party; and the correction of any material error in the sentence.
§ 1. The execution of an arbitral sentence may take place in the same cases as those in which a judicial sentence may be executed.
§ 2. The eparchial bishop of the eparchy where the arbitral sentence was issued must execute it either personally or through someone else, unless the parties have designated another executor.
THE CONTENTIOUS TRIAL
THE ORDINARY CONTENTIOUS TRIAL
THE INTRODUCTORY LIBELLUS OF LITIGATION
A person who wishes to sue another must present a libellus introducing the suit to a competent judge. In this libellus the object of the controversy is to be set out and the ministry of the judge requested.
§ 1. The judge may accept an oral petition if either the plaintiff is impeded from presenting a libellus introducing the suit or the case can be easily investigated and is of lesser importance.
§ 2. But in either situation the judge is to require the notary to put the act into writing, which is to be read to and approved by the plaintiff; this then takes the place of and has all the legal effects of a libellus introducing the suit written by the petitioner.
The libellus introducing a suit must:
1° state the judge before whom the case is being introduced, what is being petitioned and from whom;
2° indicate the legal basis for the plaintiff\’s case, and at least in general terms, the facts and the proofs to be submitted in support of the allegations;
3° be signed by the plaintiff or the plaintiff\’s procurator, and bear the date, the month and the year, as well as the address of the plaintiff or the procurator, or the residence they have declared for the purpose of receiving the acts;
4° indicate the domicile or quasi-domicile of the respondent.
§ 1. After the single judge or the president of a collegiate tribunal has recognized both that the matter is within his competence and that the plaintiff does not lack legitimate personal standing in court, he must accept or reject the libellus introducing the suit as soon as possible through a decree.
§ 2. A libellus introducing a suit can be rejected only if:
1° the judge or the tribunal is incompetent;
2° it is undoubtedly clear that the plaintiff lacks legitimate personal standing in court;
3° the prescriptions of can. 1187, nn. 1 – 3 have not been observed;
4° from the libellus introducing the suit itself it is certainly obvious that it lacks any basis whatsoever and that it is impossible that any such basis would appear through a process.
§ 3. If the libellus introducing the suit has been rejected because of defects which can be corrected, the plaintiff may correct them and present it again to the same judge.
§ 4. Within ten usable days a party is quite at liberty to lodge a recourse against the rejection of the libellus introducing the suit. This recourse is to be based on reasons and is to be made to the appellate tribunal or, if it was rejected by the presiding judge, to the collegiate tribunal. The question of the rejection is to be resolved most expeditiously.
If within a month from the presentation of the libellus the judge has not issued a decree by which he accepts or rejects the libellus the interested party can insist that the judge fulfil his duty; but if the judge, nevertheless, remains silent for ten days after the plaintiff\’s insistence, the petition is considered as having been accepted.
THE CITATION AND INTIMATION
OR NOTIFICATION OF JUDICIAL ACTS
§ 1. In the decree by which a plaintiff\’s libellus introducing the suit is admitted, the judge or presiding judge must call or summon the other parties to court to effect the joinder of the issue; he must prescribe whether, in order to agree the point at issue, they have to reply in writing or appear before him. If, from the written responses, he perceives the need to convene the parties, he can determine this with a new decree.
§ 2. If the libellus introducing the suit is considered as having been accepted in virtue of the norm of can. 1189, the decree of summons must be made in court within twenty days from the party\’s insistence on action as mentioned in that canon.
§ 3. But if the litigating parties de facto present themselves before the judge in order to proceed with the case, there is no need for a summons; the notary, however, is to note in the acts that the parties were present for the trial.
§ 1. The decree of summons to the trial must at once be intimated to the respondent and at the same time notified to any others who have to appear.
§ 2. The libellus introducing the suit is to be joined to the summons unless for serious reasons the judge determines that the libellus is not to be made known to the respondent before the latter makes a deposition during the trial.
§ 3. If the suit is filed against a person who does not have the free exercise of personal rights or the free administration of the controverted items, the summons is to be made known to the guardian, curator or special procurator, as the case may be, or to the person who is bound to enter the trial in the respondent\’s name according to the norm of law.
§ 1. The intimation or notification of summonses, decrees, sentences and other judicial acts must be made through the public postal service, making sure the acknowledgement of receipt, or by some other means that is highly secure, while observing the leges (laws) of the particular law in the matter.
§ 2. The fact of intimation or notification and its method must be clear in the acts.
§ 3. A respondent who refuses to accept the document of summons or who prevents its arrival is considered as having been legitimately summoned.
If the summons is not legitimately intimated, the acts of the process are null, unless the party nevertheless appeared to pursue the case.
If the summons is legitimately intimated or the parties have appeared before the judge to pursue the case:
1° the issue ceases to be res intgra;
2° the case becomes proper to that judge or tribunal before whom the action was begun and is competent in other respects;
3° the delegated power of a delegated judge is established in such a way that it is not lost if the authority of the person who delegated ceases;
4° prescription is interrupted unless otherwise provided;
5° the instance of the suit begins, and therefore the principle immediately applies "while a suit is pending, no innovation is allowed".
THE JOINDER OF THE ISSUE
§ 1. The joinder of the issue occurs when the object of the controversy based on the petitions and responses of the parties are specified by the decree of the judge.
§ 2. The petitions and responses of the parties, besides those in the libellus introducing the suit, can be expressed either in response to the summons or in a declaration made orally before the judge; in more difficult cases, however, the parties are to be called together by the judge to specify the question or questions to be answered in the sentence.
§ 3. The decree of the judge is to be made known to the parties; unless they have already reached an agreement, they can within ten days make recourse to that judge that it be changed; however the issue is to be resolved most expeditiously by a decree of that judge.
Once the object of the controversy has been determined, it cannot validly be changed except for a serious reason through a new decree at the request of one party and after hearing the other parties and considering their reasons.
Once the joinder of the issue has occurred, the possessor of another\’s property ceases to be in good faith; if therefore, the possessor is sentenced to make restitution, the profits made from the day of the joinder of the issue must also be returned and any damages compensated.
Once the joinder of the issue has occurred, the judge is to furnish the parties suitable time to present and complete proofs.
AND RENUNCIATION OF THE TRIAL
If a party dies or undergoes a change in status, or ceases from the office in virtue of which that party was acting:
1° if the case has not yet been concluded, the trial is suspended until the heir of the deceased, or the successor, or a person whose interest is involved, resumes the suit;
2° if the case has been concluded, the judge must proceed to the remaining steps of the case, having first summoned the procurator, if there is one, or else the heir or the successor of the deceased.
§ 1. If the guardian or the curator or the procurator or the advocate required in accordance with the norm of can. 1139, cease from office, the trial is suspended for the time being.
§ 2. However, the judge is to appoint another guardian or curator as soon as possible. The judge can appoint a procurator for the suit or an advocate, if the party has neglected to do so within the brief time prescribed by the same judge.
If for a period of six months no procedural act has been performed by the parties, though not prevented by any impediment, the trial is abated.
Abatement takes effect ipso iure against all persons, including minors, and it must also be declared ex officio with due regard for the right of petitioning for indemnity against tutors, guardians, administrators or procurators who have not proved that they were not at fault.
Abatement extinguishes the acts of the process, but not the acts of the case. These may indeed be used in another trial, provided the case is between the same persons and about the same matter. For those not involved in the case, however, these acts have no value other than as documents.
When a trial has been abated, the parties must bear the expenses which each has incurred.
§ 1. A plaintiff can renounce the instance at any stage or grade of trial; both plaintiff and respondent can likewise renounce either all or some of the acts of the process.
§ 2. In order for them to renounce an instance, the guardians and administrators of juridical persons need to consult with or obtain the consent of those whose involvement is required to place acts which go beyond the limits of ordinary administration.
§ 3. In order for a renunciation to be valid it is to be made in writing and also signed by the party or by the party\’s procurator with a special mandate to do so; it must be communicated to the other party, accepted, or at least not attacked, by that party, and admitted by the judge.
A renunciation admitted by the judge has the same effects concerning the renounced acts as an abatement of an instance and it obliges the renouncing party to pay the expenses for the renounced acts.
§ 1. The burden of proof rests upon the person who makes the allegations.
§ 2. The following do not proof:
1° matters which are presumed ipso iure;
2° facts alleged by one of the contending parties and admitted by the other unless proof is nonetheless demanded by the law or by the judge.
§ 1. proofs of any type whatever which seem useful for deciding the case and which are licit can be adduced.
§ 2. If a party insists that a proof rejected by the judge be admitted, the judge is to determine the matter most expeditiously.
If a party or a witness refuses to appear before the judge to be tried, such people may lawfully be heard by a person designated by the judge, or asked to make a declaration before a public notary or in any other lawful manner.
Except for a serious cause, the judge is not to proceed to gather proofs before the joinder of the issue.
1° THE DECLARATION OF THE PARTIES
The judge may always interrogate the parties more closely to elicit the truth. The judge must do so if requested by a party or to prove a fact which it is in the public interest to be placed beyond doubt.
§ 1. A party legitimately interrogated must answer and tell the whole truth, unless by answering, an offence committed by that party would be revealed.
§ 2. But if a party has refused to answer, it is for the judge to evaluate what can be drawn from that refusal concerning the proof of the facts
Unless a serious reason suggests otherwise, in cases in which the public good is at stake, the judge is to administer to the parties an oath that they will tell the truth, or at least that what they have said is the truth. In other cases, the administration of oath is left to the discretion of the judge.
The parties, the promoter of justice and the defender of the bond can present to the judge items on which a party is to be interrogated.
The canons about the interrogation of witnesses are to be observed in the interrogation of the parties as well, applying what is applicable.
A judicial confession is a written or oral assertion against oneself made by any party regarding the matter under trial and made before a competent judge, whether spontaneously or upon interrogation by the judge.
§ 1. If it is a question of some private matter and the public good is not at stake the judicial confession of one party relieves the other parties from the burden of proof.
§ 2. In cases which concern the public good, however, a judicial confession and the declarations of the parties which are not confessions can have a probative force to be evaluated by the judge along with the other circumstances of the case; but complete probative force cannot be attributed to them unless other elements are present which thoroughly corroborate them.
Having weighed all the circumstances, it is for the judge to evaluate the worth of an extra-judicial confession which has been introduced into the trial.
A confession or any other declaration of a party lacks all probative force if it is proved that it was made through an error of fact or it was extorted by force or grave fear.
2° PROOF THROUGH DOCUMENTS
In every type of trial, proof by means of both public and private documents is admitted.
§ 1. Public ecclesiastical documents are those which official persons have drawn up in the exercise of their function in the Church, after having observed the formalities prescribed by law.
§ 2. Public civil documents are those which are considered to be such in civil law.
§ 3. Other documents are private ones.
Unless it is otherwise established by contrary and clear arguments, public documents constitute reliable evidence of those matters which are directly and principally affirmed in them, without prejudice to the civil law of the place which provides otherwise about civil documents.
A private document, whether acknowledged by a party or recognized by the judge has the same probative force against the author or signer as that deriving from an extra-judicial confession; against others its probative force is to be evaluated by the judge together with other aspects of the case but it cannot be given full probative force unless there are other elements which fully corroborate it.
If the documents are shown to have been erased, corrected, interpolated, or affected by another such defect, it is for the judge to assess whether such documents have value and how much.
Documents do not have probative force in a trial unless they are originals or presented in authentic copy and are deposited with the chancery of the tribunal so that they may be examined by the judge and the opposing party.
The judge can order that a document which is common to both parties be exhibited in the process.
§ 1. Even if documents are common, no one is obliged to exhibit those which cannot be communicated without risk of harm in accordance with the norm of can. 1229, § 2, n. 2, or without risk of violating the obligation to observe secrecy.
§ 2. Nonetheless, if some excerpt, at least, of a document can be transcribed and can be presented in copy from without the above-mentioned hazards the judge can decree that it be produced.
3° WITNESSES AND TESTIMONIES
Proof by means of witnesses is admitted in every kind of case under the supervision of the judge.
§ 1. Witnesses must tell the truth to a judge who lawfully interrogates them.
§ 2. With due regard for the prescription of can. 1231 the following are exempted from the obligation to answer:
1° clerics in regard to whatever was made known to them in connection with their sacred ministry; civil officials, doctors, midwives, advocates, notaries and others who are bound to professional secrecy, even by reason of advice rendered, as regards matters subject to this secrecy;
2° persons who fear that infamy, dangerous vexations or other serious evils will happen to themselves, or their spouse, or persons related to them by consanguinity or affinity, as a result of their testimony.
A) THOSE WHO CAN BE WITNESSES
All persons can be witnesses unless they are expressly excluded by law, either completely or partially.
§ 1. Minors under the age of fourteen years and those who are of feeble mind are not to be admitted to bear witness. They can, however, be heard if the judge declares by a decree that it is appropriate to do so.
§ 2. The following are deemed incapable of bearing witness:
1° those who are parties in the case, or who represent the parties in the trial; the judge and assistants, the advocate and others who are assisting or have assisted the parties in the same case;
2° priests, in respect of everything that has become known to them in sacramental confession, even if the penitent has asked that these things be made known. Moreover, anything that may in any way have been heard by anyone on the occasion of sacramental confession, cannot be accepted even as an indication of the truth.
A party who has introduced a witness may forego the examination of that witness, but the opposing party may ask that the witness nevertheless be examined.
B) THE INTRODUCTION AND EXCLUSION OF WITNESSES
§ 1. When proof by means of witnesses is demanded, their names and domicile are to be made known to the tribunal.
§ 2. The items of discussion upon which interrogation of the witnesses is sought are to be presented within the time limit set by the judge; otherwise the petition is to be considered as abandoned.
It is the judge\’s responsibility to curb an excessive number of witnesses.
Before witnesses are questioned, their names are to be made known to the parties; however, if in the prudent assessment of the judge, that cannot be done without serious difficulty, it is to be done at least before the publication of the testimony.
With due regard for the prescription of can. 1231, a party can request that a witness be excluded if a just cause for exclusion is demonstrated before the interrogation of the witness.
The summons of a witness is effected by a decree of the judge lawfully intimated to the witness.
A witness who has been summoned in accordance with the norm of law, is to appear or to apprise the judge of the reason for the absence.
C) THE QUESTIONING OF WITNESSES
§ 1. Witnesses must be questioned at the office of the tribunal, unless the judge deems otherwise.
§ 2. Bishops are to be heard at the place selected by them; so too, those who in their own civil law enjoy a similar favour.
§ 3. The judge is to decide where those are to be heard for whom it is impossible or difficult to come to the tribunal because of distance, illness or other impediment with due regard for the prescriptions of can. 1071 and 1128.
The parties may not assist at the questioning of witnesses unless the judge believes that they must be admitted, especially when the matter concerns the private good. On the other hand, their advocates or their procurators may assist unless the judge believes that the process must be carried on in secret because of the circumstances of things or persons.
§ 1. The witnesses must be interrogated individually and separately.
§ 2. If in a grave matter the witnesses disagree either among themselves or with one of the parties, the judge may bring together those who differ, forestalling as far as possible quarrel and scandal.
The questioning of a witness is conducted by the judge, a delegate or an auditor, who is to be assisted by a notary; as result, if the parties, or the promoter of justice, or the defender of the bond, or the advocates who are present at the questioning have further questions to be put to the witness, they are to propose these questions not to the witness but to the judge or the person taking the judge\’s place who is to ask them, unless particular law provides otherwise.
§ 1. The judge is to call to the attention of the witness the serious obligation to tell the whole truth and only the truth.
§ 2. The judge is to administer the oath to the witnesses in accordance with can. 1213; but the witness who refuses to take it is to be heard without the oath.
The judge, first of all, is to establish the identity of the witness; the judge should seek out what is the relationship of the witness with the parties, and when addressing specific questions to the witness regarding the case, the judge is also to inquire about the sources of the witness\’ knowledge and the precise time the witness learned what is asserted.
The questions are to be brief, accommodated to the intelligence of the person being interrogated, not comprising several points at the same time, not captious, nor crafty, nor suggestive of the answer, free from every kind of offence and pertinent to the case being tried.
§ 1. The questions must not be communicated to the witnesses ahead of time.
§ 2. However, if the matters which are to be testified to are so removed from memory that unless they are recalled earlier they cannot be affirmed with certainty, the judge may advise the witness of some matters if it is thought that this can be done without danger.
The witnesses are to bear witness orally. They are not to read from a script, unless there is question of calculations or accounts; in this case, they may consult the notes which they have brought with them.
§ 1. The replies are to be written down at once by the notary, who must report the very words of the witness, at least regarding those points which bear directly on the matter of the trial.
§ 2. The use of instruments for the mechanical reproduction of the voice may be allowed, provided the replies are subsequently committed to writing and, if possible, signed by those who gave the replies.
The notary is to mention in the acts whether the oath was taken or excused or refused, also of the presence of the parties and of other persons, the questions added ex officio and, in general, everything noteworthy which may have occurred while the witnesses were being questioned.
§ 1. At the conclusion of the interrogation, the written record of the replies of the witness made by the notary must be read out before him or her, or the replies registered by the instrument of mechanical voice reproduction played back, letting the witness have the option to add, suppress, correct or change the record.
§ 2. Finally the acts must be signed by the witness, the judge and the notary.
Before the testimonies are published, witnesses, even though already interrogated, may be called again for interrogation at the request of a party or ex officio, if the judge deems it necessary or useful, provided there is no danger of collusion or of corruption.
In accord with an equitable assessment of the judge, witnesses must be compensated both for the expenses they have incurred and for the income they have lost by rendering testimony.
D) THE TRUSTWORTHINESS OF TESTIMONIES
In assessing the testimony, the judge may, if need be, require testimonial letters, and is to consider:
1° the condition and uprightness of the person;
2° whether the witness testifies out of firsthand knowledge, especially of what was seen or heard personally, or from his or her opinion, rumour or hearsay.
3° whether the witness is constant and consistent, or varies, is uncertain or vacillating;
4° whether there is corroboration of the testimony, and whether it is confirmed or not by other items of proof.
The testimony of a single witness does not yield full proof, unless it is a qualified witness who bears witness on what was discharged in an official capacity, or unless the circumstances of persons and things indicate otherwise.
The service of experts must be used whenever their examination and opinion, based on the laws of art or science, are required in order to establish some fact or to clarify the true nature of something by reason of a prescription of the law or a judge.
It is for the judge, after hearing the parties or at their suggestion, to nominate the experts or, if such is the case, to accept reports already made by other experts.
Experts can be excluded or rejected to for the same reasons as witnesses.
§ 1. Taking into account what may be gathered from the parties, the judge is to define with a decree the specific items to be attended to in the services of the expert.
§ 2. The acts of the case and other documents and resources are to be made available to the expert as needed for carrying out his or her task.
§ 3. After hearing the expert, the judge is to determine a time for the completion of the examination and the submission of the report.
§ 1. Each of the experts should draw up a report distinct from the others unless the judge orders that one report be made and signed by the experts individually; if this latter is done, differences of opinion, if any, are to be carefully noted.
§ 2. The experts must indicate clearly by what documents or other apt means they have been informed about the identity of persons, things or places, by what path and method they proceeded in discharging the function given to them and on what grounds, for the most part, their conclusions are based.
§ 3. An expert can be summoned by the judge to supply further explanations which may seem necessary.
§ 1. The judge is to weigh attentively not only the conclusions of the experts, even when they are concordant, but also other circumstances of the case.
§ 2. In giving the reasons for the decision, the judge must express what considerations prompted him or her to admit or reject the conclusions of the experts.
Experts are to be paid their expenses and remuneration as determined by the judge equitably and in fairness, with due regard for particular law.
§ 1. The parties may designate private experts, who need to be approved by the judge.
§ 2. If the judge admits private experts, they may inspect the acts of the case to the extent this is necessary for the discharge of their duty; and they may be present when the appointed experts discharge their function. They may always submit their own reports.
5° ACCESS AND JUDICIAL RECOGNIZANCE
If, in order to decide a case the judge considers it opportune to have access to some place or to inspect something, he is to set this out in a decree describing briefly, after hearing the parties, what is to be made available for this access or in the judicial recognizance.
When the access or judicial recognizance has been carried out, a document about it is to be drawn up.
To come to a just sentence, the judge can formulate presumptions which are not established ipso iure as long as they arise from a certain and determined fact which is directly connected with the subject matter of the controversy.
A person having in his or her favour what is presumed ipso iure is freed from the onus of proof, which then falls on the other party.
An incidental case is had whenever, after the trial has begun, a question is proposed which is so pertinent to the case that it very often must be resolved before the principal question, although it is not expressly contained in the libellus introducing the suit.
An incidental case is proposed in writing or orally before the judge who is competent to settle the principal case with an indication of the connection between it and the principal case.
§ 1. The judge, having received the petition and heard the parties, is to decide most expeditiously whether the proposed incidental question seems to have a basis and a connection with the principal issue, or whether it must be rejected from the outset; and if it is admitted, whether it is of such seriousness that it must be resolved by an interlocutory sentence or by a decree.
§ 2. On the other hand, if the judge decides that the incidental question is not to be resolved before the definitive sentence, the judge is to decree that it will be considered when the principal case is settled.
§ 1. If the incidental question must be resolved by sentence, the norms of the summary contentious process are to be observed, unless, taking into consideration the seriousness of the matter, the judge decides otherwise.
§ 2. But if it is to be decided by a decree, the tribunal can entrust the matter to an auditor or to the presiding judge.
Before the principal case is closed, if there is just cause, the judge or the tribunal can revoke or reform the decree or the interlocutory sentence either at the request of a party or ex officio after hearing the parties.
1° PARTIES WHO DO NOT APPEAR
§ 1. If the respondent, after having been summoned, has neither appeared nor offered a suitable excuse for being absent, nor responded in accordance with can.1190, §1, the judge is to declare the respondent absent from the trial and is to decree that the case should proceed to the definitive sentence and its execution, while observing all the formalities which are to be observed.
§ 2. Before issuing this decree, the judge must make sure, if necessary by means of another summons, that a lawful summons did reach the respondent within usable time.
§ 1. If the respondent is present in court later or responds before the settlement of the case, the respondent can adduce conclusions and proofs, with due regard for the prescription of can. 1283; however the judge is to take care that the trial is not intentionally prolonged through rather long and unnecessary delays.
§ 2. Even if the respondent has not appeared or given a reply before the case is decided, the person can challenge the sentence. If the respondent proves that he or she was prevented by a lawful impediment, and that there was no personal fault in not showing this earlier, a plaint of nullity can be lodged.
If the petition has not appeared on the day and at the hour set for the joinder of the issue and has not offered a suitable excuse:
1° the judge is to summon the plaintiff again;
2° a plaintiff who does not obey the new summons, is presumed to have renounced the suit;
3° but if the plaintiff wants to intervene in the process subsequently, can. 1273 is to be observed.
§ 1. A party who is absent from the trial, who has not given proof of a just impediment, is obliged both to pay the expenses of the lawsuit which were incurred because of the absence and also to provide indemnity to the other party, if necessary.
§ 2. If both the plaintiff and the respondent were absent from the trial, both of them are liable each to pay the entire expenses of the case.
2° INTERVENTION OF A THIRD PERSON IN THE CASE
§ 1. A person having some interest can be allowed to intervene in a case at any grade of the trial, either as a party defending his or her own right, or, in an accessory role, to help a party.
§ 2. To be admitted, however, the person must, before the conclusion of the case, present to the judge a libellus which briefly demonstrates the right to intervene.
§ 3. The person who intervenes in a case must be admitted at that stage which the case has reached with a brief and peremptory period of time assigned to present proofs if the case has reached the probatory stage.
After hearing the parties, the judge must summon to the trial a third party whose intervention seems necessary.
3° ATTEMPTS TO PENDING LITIGATION
A venture is an act by which, while a suit is pending, an innovation is made by one party against the other or by the judge against either or both of the parties, an innovation that is not allowed ipso iure and is prejudicial to a party which shows its disagreement either regarding the matter of the trial or regarding procedural rights.
A venture is null ipso iure. Therefore, the judge must decree its revocation. It is, however, sanated ipso iure if within a month from coming to know of the venture no question about it is proposed to the judge.
Questions on ventures are to be decided most expeditiously before the same judge of the main case, if the venture was perpetrated by a party; by the appeal court ,if it was done by the judge.
PUBLICATION OF THE ACTS, CONCLUSION
OF THE CASE AND DISCUSSION OF THE CASE
§ 1. After the proofs have been collected the judge by a decree must, under pain of nullity, permit the parties and their advocates to inspect at the tribunal chancery the acts which are not yet known to them; a copy of the acts can also be given to advocates upon request; however, in cases concerned with the public good, in order to avoid very serious dangers, the judge can decree that a given act is not to be shown to anyone, with due concern, however, that the right of defence always remains intact.
§ 2. In order to complete the proofs the parties may propose additional proofs to the judge; when these have been collected there is an occasion for repeating the decree mentioned in § 1 if the judge thinks it necessary.
§ 1. When everything pertinent to the production of proofs has been completed, it is time for the conclusion of the case.
§ 2. The conclusion takes place whenever the parties declare that they have nothing more to add, or the time set by the judge for proposing proofs has expired, or the judge declares that the case is sufficiently instructed.
§ 3. The judge is to issue a decree that the conclusion of the case has been completed, in whatever manner it took place.
§ 1. After the conclusion of the hearing of evidence, the judge can still call the same or other witnesses, or arrange for gathering other proofs that had not been previously asked for, only:
1° in cases in which only the private good of the parties is involved, if all the parties agree;
2° in other cases, after hearing the parties, and provided that a grave reason exists, and all danger of fraud or subornation is removed;
3° in all cases, whenever it is probable that unless new proof is admitted, the sentence will be unjust for the reasons mentioned in can. 1326, § 2, nn. 1 – 3.
§ 2. However, the judge can order or allow that a document be exhibited which, perhaps, could not have been exhibited earlier, through no fault of the interested party.
§ 3. The new proofs are to be published with due regard for can. 1281, § 1.
After the conclusion of the case, the judge is to determine an appropriate period of time for the presentation of defence briefs or observations.
§ 1. The defence briefs and observations are to be in writing unless the judge with the consent of the parties decides that an oral debate before the tribunal is sufficient.
§ 2. If the defence briefs together with the principal documents are to be printed, the prior authorization of the judge is required always keeping the obligation of secrecy if it exists.
§ 3. The regulations of the tribunal are to be observed as regards the length of the defence briefs, the number of copies and other additional matters of this kind.
§ 1. After the defence briefs and observations have been communicated to each one, both parties are permitted to present rejoinders within a short period of time set by the judge.
§ 2. This right is granted to the parties only once it seems to the judge that it must be granted a second time for a reason; however, in that case, the grant made to one party is considered made also to the other party.
§ 3. The promoter of justice and the defender of the bond have the right to reply again to the rejoinders of the parties.
§ 1. It is absolutely forbidden that information given to the judge by the parties or the advocates or other persons remain outside the acts of the case.
§ 2. If the discussion of the case has been done in writing, the judge can determine that moderate oral debate take place before the tribunal to elucidate certain questions.
A notary is to be present at the oral debate mentioned in cann. 1285, § 1 and 1287, § 2, so that, if the judge orders it or if a party requests it and the judge consents, the notary can immediately record in writing the points discussed and the conclusions.
If the parties neglect to prepare a defence brief within the time available to them, or if they entrust themselves to the knowledge and the conscience of the judge, the judge can pronounce sentence at once after requesting the observations of the promoter of justice and of the defender of the bond when they are involved in the trial, if the issue is plainly and fully known from the acts and proofs.
THE PRONOUNCEMENTS OF THE JUDGE
After the case has been tried in a judicial manner, if it is the principal case, it is settled by the judge by a definitive sentence; if it is an incidental case, it is settled by an interlocutory sentence, with due regard for the prescription of can. 1269, § 1.
§ 1. For the pronouncement of any kind of sentence, there must be in the mind of the judge moral certitude regarding the matter to be settled by the sentence.
§ 2. The judge must derive this certitude from the acts and the proofs.
§ 3. However, the judge must evaluate the proofs conscientiously with due regard for the prescriptions of the law concerning the efficacy of certain proofs.
§ 4. A judge who cannot arrive at this certitude, is to pronounce that the right of the plaintiff is not established, and is to dismiss the respondent as absolved, unless there is question of a case which enjoys the favour of the law in which case the decision must be in favour of it.
§ 1. In a collegiate tribunal, the presiding judge of the college is to determine the day and the hour when the judges are to meet for deliberation. Unless a special reason suggests otherwise, the meeting is to be held at the tribunal office, and none but the judges of the college may be present.
§ 2. On the day assigned for the meeting, the judges shall individually and without indicating their names submit in writing their conclusions on the merits of the case and the reasons, both in law and in fact, for arriving at these conclusions, which are to be appended to the acts of the case with a notation of their authenticity signed by all the judges, and are to be kept secret with due regard for § 4.
§ 3. The conclusions of the individual judge are to be made known in the order of precedence, but beginning always with the ponens or the relator of the case, and there is to be a discussion under the leadership of the presiding judge, especially in order to decide what is to be determined in the dispositive part of the sentence.
§ 4. In the discussion, each one is permitted to depart from an original conclusion. A judge who does not wish to accede to the decision of the others, can demand that, if there is an appeal, the conclusions of all be forwarded to the higher tribunal.
§ 1. If there is only one judge, that judge draws up the sentence.
§ 2. In a collegiate tribunal, the sentence is to be drawn up based on the reasons taken from those which the individual judges tendered during the discussion, unless the reasons to be preferred have been defined by a majority of the judges. The sentence must then be submitted to the individual judges for their approval.
§ 3. The sentence must be issued not beyond one month from the day on which the case was settled, unless, in a collegiate tribunal, the judges set a longer period of time for a serious reason.
A sentence must:
1° settle the controversy discussed before the tribunal with an appropriate response given to each one of the questions;
2° settle what obligations of the parties arise from the trial and how they must be fulfilled;
3° set forth the reasons, that is, the motives both in law and in fact on which the dispositve section of the sentence is based;
4° make a determination about judicial expenses.
§ 1. After the invocation of the Divine Name, the sentence must express in sequence who is the judge or the tribunal; who is the plaintiff, the respondent, the procurator, with the names and domiciles correctly indicated; the promoter of justice and the defender of the bond, if they took part in the trial.
§ 2. Next, it must briefly report the facts together with the conclusions of the parties and the formulation of the doubt.
§ 3. Following these points is the dispositive section of the sentence preceded by the reasons on which it based.
§ 4. It is to close with an indication of the day and place where it was rendered and with the signature of the judge or, if it is a collegiate tribunal, with the signature of all the judges and the notary
The norms established for the definitive sentence are valid also for the interlocutory sentence, and are to be applied with the necessary adaptations.
The sentence is to be intimated as soon as possible indicating the time in which an appeal of the sentence can be placed; it has no force before it is intimated even if the dispositive section has been made known to the parties with the permission of the judge.
The intimation of the sentence can be made either by giving a copy of the sentence to the parties or their procurators or by sending a copy to them in accordance with the norm of can. 1192.
§ 1. If in the text of the sentence either an error in calculation has crept in, or a material error has occurred in transcribing the dispositive section, or reporting the facts or the petitions of the parties, or if the points required by can. 1295, § 4 were omitted, the sentence must be corrected or completed at the request of the parties or ex officio by the tribunal which issued the sentence; the parties, moreover, must always be heard and a decree appended at the bottom of the sentence.
§ 2. If any party objects, the incidental question is to be settled by decree.
The other pronouncements of a judge, over and above the sentence, are decrees which, if they are not merely procedural, have no force unless they express the reasons at least in a summary fashion, or refer to reasons expressed in some other act.
An interlocutory sentence or a decree has the force of a definitive sentence if, in respect of at least of one of the parties, it prevents the trial, or brings to an end the trial itself or a grade of the trial.