The power of disposition of the parties over the proceeding. Acquiescence and filing of the case due to lack of purpose

Concept of acquiescence

The acquiescence is one of the forms of unusual termination of the process. It entails the recognition (total or partial) by the defendant of the plaintiff’s claims. That is to say, a conformity with all or some of the petitions of the writ of claim.

Regulation and effects of total and partial acceptance.

Its regulation is found in art. 21 LEC (Ley Enjuiciamiento Civil/Civil Procedure Act). Its allegation falls on the defendant, accepting totally or partially the claims of the plaintiff.

The first and direct effect of the total acquiescence, as we have announced, is the termination of the proceeding. It supposes the recognition of the right of the plaintiff and his claim. As a general rule, if it is admitted, a condemnatory judgment will be issued with the effect of res judicata (art. 21.1 LEC).

However, we might think that in any case it entails the issuance of a condemnatory judgment for the acquitted party, but that is not the case. The judge must carry out a verification and control task in order to avoid the following:

Is it possible for the defendant to settle in any case? No. The settlement will not be admitted if it is made in fraud of law. Nor if it is configured as a waiver of the public interest or if it causes prejudice to third parties. We will see, later on, an example with eviction and lease proceedings.

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Requirements for the cassation appeal admission

The cassation appeal is an extraordinary appeal in the Supreme Court which depends on certain technical requirements. This means that there are a large number of inadmissible cassation appeals for not complying with all the required formalities.

The referred art. 21 LEC foresees two types according to its affectation. It can be total, if the defendant accepts each and every one of the claims deduced by the plaintiff. Or partial, if only some of the petitions are accepted. This will cause the proceeding to continue its course for those petitions still in discussion. As it is logical, the effects are quite different.

The total acquiescence does not require in principle, since it is not necessary, its previous transfer to the plaintiff.

Not so, in the case of partial acceptance, where the Court is obliged to communicate it. With what purpose? So that the opposing party, can acknowledge and evaluate the continuation or not of the process. As it could be possible that the opposing party may  renounce the  claims that have not been recognized by the defendant. However, this is not usual. As a general rule, the plaintiff will continue the process with respect to the claims that have not been recognized.

In the case of the accepted claims, the plaintiff may request the Judge to issue an Order recognizing the acquiescence. However, in order for a separate decision to be possible, Article 21.1 LEC sets out certain requirements. And these are, in synthesis, that its nature does not prejudice the claims that have not been accepted and are still pending resolution. Finally, this Order may be subject to enforcement in accordance with the provisions of art. 517 LEC et seq.

Imposition of costs on the party that has accepted its claims.

The regulation of its imposition is provided for in art. 395 LEC. There are two different cases, depending on the moment in which the defendant’s acquiescence takes place:

1. Before answering the claim: as a general rule, there won´t be any cost. Unless the Court, in a reasoned manner, appreciates bad faith on the part of the defendant. In any case, the following shall be considered as bad faith:

(i) if prior to the filing of the claim the defendant had been requested in a reliable manner for payment, or.

(ii) mediation has taken place or conciliation has been requested.

2. After answering the lawsuit: in declaratory proceedings, the costs of the First Instance shall be imposed on the party whose claims are rejected in their entirety. Except if the Court appreciates, reasoned, that in the case there are serious doubts of fact or law. For which it will be taken into consideration the previous jurisprudence in similar cases.

There is a specialty in partial acceptances:

• Art. 395.2 LEC, only foresees the exception of its payment, on the full, integral, unconditional and absolute acceptances.
• Therefore, for the case of partial acceptance, the ordinary rules of the process must be followed. Three scenarios may occur:

1. 1. That the pending claims are upheld and, therefore, are imposed on the defendant.
   2. That the pending claims are partially upheld and, therefore, each party pays half of the common claims.
   3. That the pending claims are dismissed and, therefore, are imposed on the plaintiff.

Speciality of eviction and lease cases

In the case of eviction and lease proceedings, there are some special features with respect to the “acquiescence”. As we have already mentioned, the institution of the acceptance is subject to certain limitations: fraud of law, waiver of the public interest and the possible involvement of third parties.

In this case, the interests of third parties may be affected by its admission. In fact, it is common in leasing transactions. In the event of the tenant’s acceptance, who is the debtor of the rent, figures such as: the guarantor of the debt, the sublessee, the assignee, etc., may be affected.  For that reason, the judge must examine the singular circumstances, the intervening figures and other extremes before admitting the acceptance.

Concept of supervening absence of the object of the process

The supervening absence of the object of the process is configured as another anomalous way of termination of the process. It entails the disappearance of the procedural object, by extraprocedural satisfaction, for causes that depend or not on the will of the parties.  Consequently, the continuation of the proceeding is unnecessary, since there is no longer such a legitimate interest. Undoubtedly, it is a clear example of expression of the principle of requested justice. It can never be decreed ex officio.

It supposes the extraprocedural satisfaction of the claims of the plaintiff or counterclaimant. Its requirements are:

1. That it takes place after the filing of the claim (art. 413 LEC).
2. The satisfaction must be based on the claims of the plaintiff or the counterclaimant.
3. It must be total. This means that there must be an identity between the claim and the fact, act or legal business.
4. That the parties give their mutual and express consent.

Regulation and effects of the supervening absence of the subject matter of the proceeding.

The supervening absence of the object of the proceeding is regulated in art. 22.1 LEC. It can appear at any stage and moment of the proceeding in progress. It should be noted that the parties must inform the Court of its existence. Failure to do so, has different effects, as we shall see.

After the pertinent communication to the Court, the counterpart will be given notice together with a document that proves the losing of the procedural object. It can occur:

1. That the counterpart gives conformity: the Counsel for the Administration of Justice by Order,  declare the termination of the proceeding without imposition of costs. Such resolution will have the effects of res judicata (art. 22.1.2 LEC).
2. That the opposing party does not agree: Then, the parties will be summoned to a hearing to determine whether or not there is an extraprocedural satisfaction of the object of the process (art. 185 LEC). After this, the Court by an Order, will decide whether or not to continue the proceeding. With the corresponding imposition of costs for the party whose claim was rejected.

Conclusions

• The acquiescence is a procedural figure conferred to the defendant as a form of termination of the process. However, it will not be admitted if it is made in fraud of law. Neither, if it causes prejudice to third parties.
• The acquiescence may be total or partial. In the first case, the defendant accepts each and every one of the claims deduced by the plaintiff. In the second, only some of the petitions.
• When the acceptance is partial, a separate decision may be issued on the accepted claims. And to continue the process for the petitions on which there is conformity.
• In order for such a separate decision to be issued, it will be necessary that its nature does not prejudice the claims that have not been accepted.
• In relation to the imposition of costs, it will depend on the circumstances and the procedural stage in which it has been made.  It varies if it is made before or after answering the defendant. And if it has made a previous reliable requirement.
• Also, the supervening absence of the object entails the disappearance of the procedural object. And it can occur, by extraprocedural satisfaction or by causes that depend on the will of the parties.
• From the regime foreseen for the supervening absence of the object, we can conclude that the defendant cannot oppose its operativity. Because the only reason for its allegation is the absence of legal standing and the subsistence of legitimate.

If this article has been of interest, we also suggest you to read the following article published on our website: Royal Decree 16/2020 on Procedural Measures, Blade Runner and Desperate Lawyers.