This article focuses on a comparative analysis, in the light of the principle of availability, of some civil procedural law institutions, particularly important in the economy of a proceeding for the parties involved. It shall consider the acts of disposition of the plaintiff and the defendant presented in an antithesis. The purpose of this paper is to present the advantages and disadvantages of each institution as well as the implications for the parties of a civil proceeding.
The plaintiff’s acts of disposition shall be compared: the withdrawal (Art. 406-407 New Romanian Procedural Code), the waiver to claim (Art. 408-410) and the defendant’s acts of disposition, judgements delivered based on acknowledgement of the claim (Art. 436-437). Both parties have also the option known as the acquiescence to the judgment (Art. 463-464).
First of all, the definition existing in legal legislation of each institution shall be considered. Subsequently, the main similarities of acts of disposition of the parties shall be outlined. The third section will be devoted to the differences between the plaintiff’s and the defendant’s possibilities to end the civil proceeding. The last part of the paper will present in a subjective note and will emphasize the usefulness of the discussion related to choosing an act of disposition.
The New Code of Civil Procedure does not provide a definition of acts of disposition of the parties in the civil proceeding.
The doctrine first classified the acts of disposition of the parties and subsequently provided a definition. According to an author’s opinion: “the acts of disposition are: the divestment (plaintiff’s waiver), the acquiescence and the judicial settlement. These are acts of will of the parties on individual rights (claims) deferred to the judge or procedural means by which rights may be recognized or enforced”. (Boroi, Stancu, 2015, p. 534.)
According to different legal literature sources, it is generally accepted the idea that the acts of disposition are a set of means which provide both parties legal weapons to start/finish the judgement without any restriction. (Durac, Cărpușor, 2015)
The legislature has not opted incidentally for this arrangement since the doctrine prior to the new code admitted that the initiator of the civil proceeding may end the civil proceeding under certain conditions. This capacity is a purely potestative right, assimilated to a procedural incident that makes the judgment nugatory. In other words, it speaks of a waiver of the claim deferred before the court.
In contrast, in light of the principle of equality of parties in the civil procedure, the defendant is conferred this right as well. The possibility of acquiescing to the plaintiff’s claims is a mechanism by which the person sued can stop a civil proceeding it no longer wants. In other words, unlike the procedural incidents based either on the plaintiff’s will or on the passivity or negligence of the parties (suspension and superannuation), the acts of disposition of the defendant are rather an explicit or implicit acknowledgement of the plaintiff’s claim.
The withdrawal has been defined by the doctrine as: “a unilateral act of disposition by which the plaintiff expresses its willingness to withdraw such proceedings” (Leș, 2005, p. 825).
The waiver of the right is a prerogative of the plaintiff, “an act of disposition with adverse effects for the plaintiff, as it waives the subjective right deferred before the court.” (Leș, 2011, p. 518)
During years of research, scholars have classified the acquiescence as a “procedural act of disposition which can take place under two forms: the acquiescence to the plaintiff’s claims or the acquiescence to the judgment.” (Baias et all, 2013, p. 1049)
Lately, in the legal literature there have arisen some discussions on the following topic. Scholars have imagined the next hypothesis which links two different problems: the waiver of the right and the limit of representation when it comes to an attorney.
So what happens if the attorney makes a verbal statement during judgement without having an authentic paper from the client in which he declares that he understands to finish the judgement by using the plaintiff’s waiver of the right? If the client is present to the scene and has no reaction, the judge can assume that this a legal statement that should be taken into account? Some authors believe that it may be possible. (Tăbârcă, 2013, p.431) One argument provided is that, the presence of the client covers any additional formal defect. However, others believe exactly the opposite. (Chis, Zidaru, 2015, p.186). They assume that it is mandatory an authentic paper from the client in order to invoke any act of disposition. Moreover, they explained that even the legal agreement/ contract closed between the client and the attorney it is not enough for the judge to accept the verbal statement and as a consequence, to end the judgement. (Chis, Zidaru, 2015, p. 186).
The Main Similarities and Differences
First of all, as noted above, the four categories are subsumed to the acts of disposition. Second of all, in principle they are procedural, unilateral, unconditional acts, genuine potestative rights. As acts of disposition, the fulfilment of substantive and procedural conditions is required. For instance, in the context of representation, where the plaintiff wishes to terminate the case, in accordance with Art. 406 para. (2), the request is made in person or by representative with special power of attorney.
It is clear that in the case of waiver of the right, things are likewise as though the text of Art. 408 does not expressly provide it, paragraph 3 is conclusive in this regard. It requires the plaintiff to submit the waiver before the court verbally or by authentic instrument. In our opinion, in case of the procedural representation, a special power of attorney is required either for attorney or another representative. Submitting the contract of legal assistance in original is not enough.
Furthermore, according to Art. 436 once the defendant acknowledges the plaintiff’s claims, the court delivers a partial judgment. Again, the legislature does not clearly show the rules affecting the representation but it is necessary to refer to the general rules of representation. As such, according to Art. 81, all acts of disposition of the parties cannot be made by the representative but under a special mandate or with the prior approval of the court or the competent administrative authority.
Another similarity arises from the exercise of these procedural documents: either verbally at the hearing or in writing in the form of a request. It is obvious that regardless of the method chosen, the parties’ statement will undergo a procedural act in written form. First, if the plaintif takes into account the possibility to withdraw the right during judgement, the clerk will automatically incorporate his verbal statement in the preparatory court decision. Therefore, the preparatory court decision is a genuine authentic document.
As for the effects of the court order, Art. 435 requiring the compulsoriness and enforceability of a court order is applicable. In short, a court order, either not final or unenforceable, shall take effect between the parties and their successors. However, the judgment shall remain enforceable against any third party, non-participating in the proceeding.
Another similarity is the remedy which may be exercised in the event of a judgment given by the court. The parties have the second appeal, both for discontinuance and acquiescence.
Interestingly enough, the ordinary way of second appeal is not present under the new code, being replaced by the appeal. Thus, the second appeal has become an extraordinary means of remedy with the review and appeal for annulment.
However, the legislature chose to keep the remedy of the second appeal when it covered all the procedural incidents. The defendant’s acquiescence and the parties’ transaction have the same legal status in the matter of remedies. Moreover, according to Art. 406 para. (5), Art. 409 para. (2), in the case of withdrawal or waiver of the right claimed, if the withdrawal takes place at the appeal or in an extraordinary remedy, the court rules the annulment of the judgment or judgments delivered in the matter.
Regarding the acquiescence, in principle there is no special treatment. Thus, according to Art. 437 para. (2) if the acquiescence was made before the court of appeal then the first-instance judgment will be cancelled accordingly. One may note that the acquiescence cannot intervene in the extraordinary legal remedies as provided expressly for the discontinuance.
In this part of the paper I will analyse the main differences existing within each institution. As for the form of the acts of disposition, it is necessary to make the following clarifications. The withdrawal can be made either verbally or in written form. The legislature has not felt the need to make further clarification on the written request. Consequently, the provisions of Art. 148-152 of the general part apply.
The waiver to the right claimed has a special status in this matter. Art. 408 establishes the requisite of the authentic form. It is necessary for the plaintiff to appear before a notary public or before the court and be informed about the derivative effects of this act.
In summary, the establishment of the authentic form is sensible when wanting to waive the right as upon exercising this right, the plaintiff will be unable to introduce a new proceed for summons on the same subject against the same parties. Also, if we are to analyse the provisions of Art. 436-437 on the defendant’s acquiescence to the plaintiff’s claims, one shall notice the following: the defendant may recognize the claims brought before the court through interrogation and voluntary confession. Apparently, this is exclusively before the court.
However, part of the doctrine revealed that “as for the acquiescence form, the law does not contain explicit provisions so that it can be made verbally before the court and in writing by private deed.” (Boroi, Stancu, 2015, p. 541).
Unlike the above, the acquiescence to the judgment is itself a judgment which the defendant chooses to comply either expressly or tacitly. When choosing to abide by it expressly, the methods are: authentic document or verbal statement before the court. In conclusion, we note that the documents annulling a right are those providing for additional conditions in terms of form.
The waiver of the right claimed and acquiescence to the judgment are two examples that have important implications in conducting the civil proceedings. On the contrary, the withdrawal and acquiescence to the plaintiff’s claims does not seem to be so demanding on the form. One thing is certain, if the plaintiff is still in the statute of limitation, it may reintroduce a new application for summons. As for the limit procedural time when such powers may be exercised: the withdrawal at a different time from other acts of disposition.
First of all, if the plaintiff withdrawals within the regularization stage but before the notification of the summons, the proceeding ends without serious implications. Conversely, if the withdrawal occurs after the notification, the plaintiff may be required to pay trial expenses incurred by the defendant. Moreover, after the first hearing, the withdrawal takes effect only if accompanied by the defendant’s express or tacit consent. The waiving of the right claimed may occur at any time during the trial, including appeals.
The utility of the discussion resides in the fact that the plaintiff must consider well what it will choose to do. Although the waiving of the right seems more advantageous as it is not conditional on the defendant’s consent, however, once the request accepted, the question of another trial is impossible.
Alternatively, the withdrawal may sometimes be inappropriate, especially in terms of bearing the costs. Moreover, the defendant must be summoned for the first trial date so that the waiver can operate thereafter. Moreover, the form required by the legislature informs the plaintiff that if it chooses to submit a document, it must be authentic.
From the perspective of the plaintiff, the acts of disposition cannot be exercised on a discretionary basis, therefore in order to avoid any abusing requests, the legislature chose to provide expressly the conditions whereby the withdrawal becomes effective.
When reviewing the defendant’s acts of disposition, one may ascertain: under Art. 436-437, the defendant may acquiesce to the plaintiff’s claims at any time during the trial, including during the appeal.
Acquiescence to the judgment may intervene only once the court has ruled the judgment. As a rule, it is not conditional. By exception, when conditional, it only produces effects if accepted expressly by the opposing party. The procedural time is another key element in the economy of articles 462-463. Either the party has exercised a remedy, or it waives in advance to a remedy it could have used.
The utility of the discussion resides in establishing whether a certain remedy was waived subsequently the court decision or the proceeding was withdrawn. It is also beneficial in terms of trial expenses.
In the case of waiving the right claimed, the burden of costs lies with the plaintiff. In the case of acquiescence to the plaintiff’s claims, things are entirely different. According to Art. 454, if the defendant admitted at the first hearing, by summoning the parties, the plaintiff’s claims, it shall not be required to pay the trial expenses. If the defendant was in default, then this benefit becomes inapplicable.
Ending the proceeding in an incipient form is an incentive for the defendant when it is not in default. The institution proves to be beneficial in the context of trial expenses.
We note once again the scope of Art. 8, namely the equality of the parties in the civil proceeding. There is an antithesis between the plaintiff’s withdrawal and the defendant’s acquiescence to the plaintiff’s claims in terms of trial expenses.
However, there is a slight disparity between the two parties. If the plaintiff waives the first hearing, then its act is not unilateral. It is dependent on the defendant’s consent, and the trial expenses shall be borne by it or by both parties. If acquiescence occurs at the first hearing, the defendant is exempt from any trial expenses. Behold, the norms on the trial expenses are more favourable to the defendant.
The choice of any act of disposition should not be random. The party’s advisor should provide the necessary advice depending on the procedural context. Thus, from the perspective of the plaintiff’s counsel, I would lean towards the withdrawal when the plaintiff realises the facts are not favourable. For instance, its right is not present or it has insufficient proofs.
Waiver of the right claimed is a risky choice. Firstly, because the decision could not be discussed again under any circumstances. For example, in matters of succession if the deceased makes a bequest affected by a particular burden. It transmits the property of real estate X, the legatee (the legatee is usually a beneficiary who inherits under a will one particular good or a specific part of the inheritance) has the duty of caring for the son of the deceased aged 30 years old suffering from a locomotor disorder. If the burden accompanying the right is too onerous, then it is better to waive the right. In this case, the legacy is very random. If the legatee accepts, the payment of all medical care might be much higher than the value of the property, the subject matter of the bequest.
On the other hand, a partial acquiescence to the plaintiff’s claim is an optimal solution in some situations. If, for example, several heads of claim have been made and the defendant agrees to repay money arising from a loan contract but does not agree with the plaintiff’s request to be paid damages as it can prove the refusal of the creditor to receive the payment at the maturity date, then the defendant may request the partial acquiescence. The advantage would be to further continue the proceeding on other claims disputed.
In my opinion, the option of acquiescence to the judgment is a hazardous one. If the defendant acquiesces expressly, then the problem is solved. But if the acquiescence is tacit, a series of controversies may arise. Firstly, because the legislature did not expressly provide which are the documents for tacit enforcement. Secondly, because other evidence may appear that could change the fate of the dispute.
In this way, the text of Art. 464 para. (2) shows that acquiescence may be deducted only from accurate and consistent acts or facts, however, it is difficult to assess in concreto whether the act is equivocal or unequivocal.
A genuine reflection of the principle of availability, the acts of disposition give the parties the power to end the civil proceedings. The definition of each of act of disposition allowed us to trace the main similarities and differences. We demonstrated that some are more favourable in terms of a possible retrial, or that others produce significant effects on the parties’ assets.
Therefore, in this context, the course of private justice may be determined by the will of the parties, and the advisability of such an approach is not the prerogative of the judge.
By Ruxandra Adina Gingărașu
This article was originally published in issue 4.3 of the magazine.