Defendant Responses and Legal Default in Civil Procedure

Defendant's Attitudes Towards a Legal Claim

Options for Responding to a Claim

• No Answer (Default/Rebellion).
• Mere Appearance with a lawyer or solicitor.
• Answer (Formal Response):
  • Admission/Acceptance: Supports the claim, leading to the end of the process regarding that claim.
  • Opposition: Contesting the claim.
  • Counterclaim: Opposing the original claims and filing a counter-suit.

The Procedural Act of Answering

The Answer is a procedural act performed by the defendant, formally responding to the applicant's claim. It involves providing procedural documents concerning the substance of the dispute and determining the defendant's desired outcome.

Opposition to the Claim

Opposition involves the defendant challenging the plaintiff's demand. This can include:

• Raising procedural or material exceptions to the demand.
• Denying the facts alleged by the plaintiff.
• Admitting the facts but providing a different legal assessment (interpretation).

Types of Exceptions

1. Procedural Exceptions: These are officially valued by the Court or alleged by the plaintiff, focusing on procedural defects.
2. Material Exceptions (Merits): These discuss the merits of the case, seeking acquittal or dismissal. Material exceptions include:
   • Impeditive Facts: Facts that hold back or prevent the facts alleged by the plaintiff from producing their legal effects.
   • Extinctive Facts: Facts that effectively suppress or extinguish the plaintiff's right.
   • Exclusive Facts: Events that grant the defendant a right to remove or negate the complainant's right.

Counterclaim: Requirements and Effects

Requirements for Filing a Counterclaim

• Formal Requirements: The counterclaim must be clear and explicit, filed concurrently with the written response, and handled within the same trial as the original demand.
• Subjective Requirements: It must be directed against the plaintiff or co-litigants (litisconsortes) involved in the original suit.
• Objective Requirements: The counterclaim must be connected with the claims of the original demand and processed within the same procedure.

Effects of a Counterclaim

The effects of the counterclaim are generally the same as those of the original demand.

Legal Default (Rebellion)

Legal Default, often termed Rebellion in certain jurisdictions, occurs when the defendant, having been duly summoned to appear, fails to respond or participate. Default is formally established by a declaration given by the judge or the clerk of the court.

Legal Status of the Defaulting Party

• Special arrangements apply for notifications.
• The legal process continues without the defaulting party.
• If the defaulting party enters the process later, they must accept the current state of the proceedings.

Special Notification Arrangements for the Defaulting Party

The initial notice of default is typically made by mail or by publication if the defendant's address is unknown. Following this initial notification, no further notices are usually required, except for:

• Notice of the pendency of the process, if the defendant's address becomes known.
• Notice of the final resolution of the process.

Cessation of Legal Default

The defaulting party may appear at any time to cease the state of default. Furthermore, an extraordinary remedy may be available against a final decision rendered in absentia (while the defendant was in default).