The parties’ power of disposition over the proceeding. Withdrawal and renunciation

Introduction

Article 19 of the LEC (Civil Procedure Act) states that the litigants have the power of disposing the object of the trial. And, it also states that they may renounce, withdraw, settle, submit to mediation or reach an agreement. In this article we will focus on the first two possibilities, and we will try to answer several questions: What is withdrawal, what is renunciation, how are they similar and how do they differ? And, finally, what are the consequences of each of them in the future exercise of rights?

What is withdrawal?

The parties to a civil proceeding have the right to abandon the proceeding they have initiated by withdrawing from the action.

Withdrawal is an anomalous termination of the proceeding. It is based on the unilateral declaration made by the plaintiff to abandon the claim of the proceeding already in progress. Thus, there will be no pronouncement on the claim that had been filed.

The plaintiff must have a special power of attorney and must clearly and unequivocally formulate the withdrawal.

In addition, the defendant, in the event of withdrawal and if it wishes to oppose, will have the right to a hearing.  The party opposing the withdrawal will have to reason its position under a legitimate interest. Failure to do so shall not prevent the conclusion of the proceedings.

It will be concluded by Decree of the Clerk of the Court, if the defendant agrees or does not oppose within the time limit granted. If the defendant opposes, it will have to be done through an order.

The defendant may sometimes benefit from the withdrawal. But there will be others who will try to stop the plaintiff’s withdrawal so that he cannot initiate another proceeding and thereby harm the defendent.

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What is unilateral and bilateral withdrawal?

Withdrawal can take two forms:

• Unilateral. It will be produced by the plaintiff’s declaration of will. In the first place, it can be before the defendant is summoned to answer the lawsuit. Or at any point in the process when the defendant has been declared in default (art. 20.2 LEC). Or lastly, it may be during the appeals phase (art. 450 LEC).
• Bilateral.  It will occur in all other cases, that is, when the defendant is already a party to the proceeding. It is for this reason that its admission requires the hearing of the defendant.

What is total and partial withdrawal?

The withdrawal can also be divided into:

• Total. That is to say, when each and every one of the actions exercised in the procedure is waived. So that, the process will end without the judge having issued a sentence. And, therefore, it will not produce the effect of res judicata.
• Partial. That is to say, one or some of the actions exercised in the proceeding are waived. But not all of them. Therefore, claims that are not subject to withdrawal will continue until a judgment is handed down.

What are the effects of the withdrawal?

It is here where we have to stop to make special reference to the costs of the process. For this we will have to take into account:

The withdrawal that has not been consented by the defendant will mean that the plaintiff is sentenced to pay all costs. If there is consent or no opposition, such costs will not be imposed on the withdrawing party.

If the defendant expresses consent to the withdrawal but disagrees with the non-imposition of costs against the plaintiff. According to the two lines of jurisprudence:

• He will be able to oppose against the costs even if he accepts the withdrawal.
• What will happen if the defendant is compensated for the costs that have brought him to the process? He will have to redirect his request through the channel of opposition to the withdrawal.

The Civil Procedure Law does not regulate the imposition of costs in cases of tacit withdrawal.

What about renunciation?

The renunciation of the procedure is the most evident exponent of the power that has the actor of disposition of the process.  Affecting the right on which he bases his pretension and the exercised action.

The renunciation is an anomalous termination of the procedure in which the plaintiff withdraws from it abandoning his rights. It entails the total abandonment of the rights, so that he/she will not be able to exercise them in the future. This termination of the proceeding will result in the issuance of a judgment on the merits, that will dismiss the claim in its entirety. In addition, it will have the force of res judicata.

It may not be waived if the waiver is prejudicial to third parties, is contrary to public policy or is expressly prohibited by law.

The abandonement of the action is not only made of procedural law, but also includes material and substantive law.

It may also be partial or total depending on whether it affects all or only some claims.

After the waiver, a dismissal judgment will be issued, therefore, it will not be necessary to give a hearing to the defendant to oppose.

What are the effects of the renunciation?

The renunciation does not require the acceptance of the defendant. However, it will be able to allege as many questions as it considers opportune for violating the requirements of article 62 of the CC. The LEC does not foresee to give transfer of the renunciation to the defendant but as I was saying without denying him the possibility of alleging. These allegations may be made without having to be transferred to the judicial body. It will be done by means of the procurator of the written waiver or by means of legally established appeals against sentences that have been issued. Thus, the judge will have to take these into account allegations in order to issue a decision.

And finally, it must be taken into account that the judge will not be obligatorily bound to the waiver. The judge may reject it in cases where it is legally unacceptable.

What is the difference between withdrawal and renunciation?

Regarding the differences, the renunciation definitively abandons the action, and with it, the right possessed by the plaintiff. It is the judge who will have to approve the waiver. Remember that certain rights cannot be waived, such as fundamental rights.

On the other hand, the withdrawal puts an end to the procedure without abandoning your rights and you can exercise them in another process. As long as it is within the time limit, the claim can be exercised.

Therefore, the renunciation will not be able to initiate the action again while in the withdrawal there will be that option.

Conclusion

As we have seen, both withdrawal and waiver are unusual terminations of the process.  It should be considered that, as a general rule, it is really the judgments that terminate the proceedings.

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