» The Contentious Trial
» The Ordinary Contentious Trial
» The Pronouncements of the Judge
A principal case which has been dealt with in judicial fashion is decided by the judge by a definitive judgement. An incidental matter is decided by an interlocutory judgement, without prejudice to can. 1589
§1 To give any judgement, the judge must have in his mind moral certainty about the matter to be decided in the judgement.
§2 The judge must derive this certainty from the acts of the case and from the proofs.
§3 The judge must conscientiously weigh the evidence, with due regard for the provisions of law about the efficacy of certain evidence.
§4 A judge who cannot arrive at such certainty is to pronounce that the right of the plaintiff is not established and is to find for the respondent except in a case which enjoys the favour of law, when he is to pronounce in its favour.
§1 The presiding judge of a collegiate tribunal decides the day and time when it is to meet for discussion. Unless a special reason requires otherwise, the meeting is to be at the tribunal office.
§2 On the day appointed for the meeting, the individual judges are to bring their written conclusions on the merits of the case, with the reasons in law and in fact for reaching their conclusions. These conclusions are to be added to the acts of the case and to be kept in secrecy.
§3 Having invoked the divine Name, they are to offer their conclusions in order, beginning always with the ‘ponens’ or ‘relator’ in the case, and then in order of precedence. Under the chairmanship of the presiding judge, they are to hold their discussion principally with a view to establishing what is to be stated in the dispositive part of the judgement.
§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, his or her conclusions be forwarded to the higher tribunal.
§5 If the judges do not wish, or are unable, to reach a decision in the first discussion, they can defer their decision to another meeting, but not beyond one week, unless the instruction of the case has to be completed in accordance with can. 1600
§1 If there is a sole judge, he will draw up the judgement.
§2 In a collegiate tribunal, the ‘ponens’ or ‘relator’ is to draw up the judgement, using as reasons those tendered by the individual judges in their discussion, unless the reasons to be preferred have been defined by a majority of the judges. The judgement must then be submitted to the individual judges for their approval.
§3 The judgement is to be issued not later than one month from the day on which the case was decided, unless in a collegiate tribunal the judges have for grave reasons stipulated a longer time.
The judgement must:
1° define the controversy raised before the tribunal, giving appropriate answers to the individual questions;
2° determine the obligations of the parties arising from the trial and the manner in which these are to be fulfilled
3° set out the reasons or motives, both in law and in fact, upon which the dispositive part of the judgement is based;
4° apportion the expenses of the suit.
§1 The judgement, after the invocation of the divine Name must state in order the judge or tribunal, and the plaintiff, respondent and procurator, with names and domiciles duly indicated. It is also to name the promotor of justice and the defender of the bond if they were engaged in the trial.
§2 It must then briefly set out the alleged facts, with the conclusions of the parties and the formulation of the doubt.
§3 Then follows the dispositive part of the judgement, prefaced by the reasons which support it.
§4 It ends with the date and the place in which it was given, and with the signature of the judge or, in the case of a collegiate tribunal, of all the judges, and of the notary.
The rules set out above for a definitive judgement are to be adapted also to interlocutory judgements.
A judgement is to be published as soon as possible, with an indication of the ways in which it can be challenged. Before publication it has no effect, even if the dispositive part may, with the permission of the judge, have been notified to the parties.
The publication or notification of the judgement can be effected by giving a copy of the judgement to the parties or to their procurators, or by sending them a copy of it in accordance with can. 1509
§1 A judgement must be corrected or completed by the tribunal which gave it if, in the text of a judgement, there is an error in calculations, or a material error in the transcription of either the dispositive part or the presentation of the facts or the pleadings of the parties, or if any of the items required by can. 1612,
§4 are omitted. This is to be done either at the request of the parties or ex officio, but always after having consulted the parties and by a decree appended to the foot of the judgement.
§2 If one party is opposed, an incidental question is to be decided by a decree.
Other pronouncements of a judge apart from the judgement, are decrees. If they are more than mere directions about procedure, they have no effect unless they give at least a summary of their reasons or refer to motives expressed in another act.
An interlocutory judgement or a decree has the force of a definitive judgement if, in respect of at least one of the parties, it prevents the trial, or brings to an end the trial itself or any instance of it.
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