The Ordinary Proceedings in the New Code of Civil Procedure

Carlos Villalobos, Partner at Icaza, González-Ruiz & Alemán, shares his insights on the Ordinary Proceedings in the New Code of Civil Procedure (Law 402 of October 9, 2023)

By: Carlos E. Villalobos Jaén

The Ordinary Proceedings is regulated in Chapter 1, Title I, Book Four of the Civil Procedural Code, contained in Law 402 of October 9^th, 2023.

The rules that, in particular, regulate the Ordinary Proceedings range from Articles 615 to 620. This specific legislation must be combined with the rules that, in general, in the Civil Procedural Code, must be taken into account for the knowledge of civil, commercial matters (see Article 2 of the Civil Procedural Code) and others not regulated by special laws. Our last statement stems from the provision established in Article 615 of the new Code, which expressly states that: “Any matter of a contentious nature that does not have a special Proceedings shall be subject to the guidelines of the ordinary proceedings.”

Declaratory proceedings, which in doctrine are also called “cognitive proceedings”, are found in Titles I and II of Book Four, and their regulation is included from Articles 615 to 684, within which “special declaratory proceedings” are also included. (see objection of Hernán Fabio López Blanco regarding understanding Expropriation Proceedings as declaratory proceedings, page 37 Civil Proceedings Book)

Referring to the Cognitive or Declaratory Proceedings, Professor Hernán Fabio López Blanco points out in his work on Civil Proceedings, the following:

“COGNITIVE PROCEEDINGS

Within the proceedings of contentious jurisdiction, the cognitive or cognizance proceedings, also called declaratory, occupies a preponderant place, through which it is sought that the judge, once he/she has analyzed the evidentiary material in each case, passes a judgement pursuant to the claim alleged in the complaint, or acquits the defendant, the dominant characteristic of which is the fact that there is lack of certainty as to the right whose declaration is sought and the judgment is intended to put an end to the uncertainty.

The cognitive proceedings can be simply declaratory, constitutive or condemnatory, depending on whether the claim contained in the complaint has any of these characteristics. Thus, the ordinary trial in which the recognition of the status of extramarital child is requested shall be a declaratory cognitive proceedings; the oral proceedings in which the declaration of divorce is requested shall be constitutive, cognitive and the ordinary proceedings in which a judgment for non-contractual civil liability is requested shall be cognitive conviction. These examples show the very wide field of the cognitive proceedings, a circumstance which allowed CARNELUTTI to say that “it has been in the study of the contentious cognitive proceedings where the greatest number of concepts have been elaborated and the greatest number of principles have been discovered, whereby the modern science of procedural law is composed. A large part of these concepts and principles have since been shown to be useful for the knowledge of other types of proceedings: i.e., for the study of the execution proceedings and the voluntary proceedings.”

The Procedural Code, in Book Three, Section One, uses the name “declaratory proceedings”; it is worth clarifying that the expression cannot be understood as if only declaratory claims were ventilated by such a system, since, without a doubt, this phrase is used as a synonym for the cognitive proceedings; therefore, those that the Code calls declaratory proceedings are those that the universal doctrine calls cognitive proceedings, a term that would have been more technical to designate that part of the Code.

However, it should not be ignored that when the phrase declarative process is taken as synonymous with cognitive process, it is borne in mind that every cognitive process (whether condemnatory, pure declarative or constitutive) implies a declaration, even when it entails different consequences.”

Included in declaratory (Civil Procedural Code) or cognitive (accepted Universal Doctrine) proceedings, is the Ordinary Proceedings, which is the one we shall refer to in terms of its new procedural regulation. Professor Ramiro Bejarano Guzmán highlights in his book “DECLARATIVE PROCEEDINGS” the importance of the ordinary proceedings, emphasizing the following:

“Without a doubt, the ordinary proceedings, or plenary, as it is called in other legislations, is the most important of all those enshrined in our procedural legislation. It could be said that all procedural complexities arise in this process, which is why the legislation, on the one hand, has intended it to serve as a vehicle for the processing of the most significant controversies, and on the other, has developed it by enshrining broadly the terms within which the judge and the parties must exhaust and exercise their respective procedural acts.”

1. DETERMINATION OF JURISDICTION BY REASON OF THE AMOUNT. (Article 615)

Article 615 of the new Civil Procedural Code expressly establishes the following:

“Article 615. Scope of application and types of proceedings. Any matter of a contentious nature that does not have a special procedure shall be subject to the guidelines of the ordinary proceedings.

Ordinary proceedings are of two types: small claims and large claims.

The small claims proceedings are those with a value which exceeds one thousand balboas (B/.1,000.00) without exceeding the sum of ten thousand balboas (B/.10,000.00), and the large claims are those with a value greater than ten thousand balboas (B/.10,000.00).

Ordinary small claims proceedings shall be within the jurisdiction of the municipal judges in the first instance; and the ordinary large claims proceedings shall be within the jurisdiction of the circuit judges in the first instance.

In the cases where this Code establishes a different proceedings, the plaintiff may choose the ordinary proceedings.

The provision allows the person who sues to resort to the ordinary proceedings, even if there are proceedings specially regulated for the cause being proposed. Of course, within the limits indicated by the amount of what is claimed.

The provision, with regard to the assignment of jurisdiction by amount, does not distinguish between the two types of category of small claims proceedings, but groups them into a single category, without distinguishing as Article 14 of the Civil Procedural Code does. The aforementioned provision states the following:

“Article 14. Jurisdiction by amount. When jurisdiction is determined by the amount, the proceedings are of large or small claims, according to the estimate set out in the complaint.

There are two types of categories within the small claims proceedings, when they deal with claims which exceed one thousand balboas (B/.1,000.00), and which are not larger than two thousand five hundred balboas (B/.2,500.00); and when they deal with claims whose amount exceeds two thousand five hundred balboas (B/.2,500.00), but do not exceed ten thousand balboas (B/.10,000.00). They are within the large claimS category when they deal with claims which exceed ten thousand balboas (B/.10,000.00)”.

We do not see in the Procedural Code the distinction between small and minimum claims proceedings as the aforementioned article seems to propose and exists in other countries.

It is therefore said that the Ordinary Proceedings with large claims shall be those exceeding the amount of B/.10,000.00, i.e., those that have an amount of B/.10,000.01 or more, whose jurisdiction shall be assigned to the Circuit Judges. In the case of small claims proceedings (both small and minimum categories) they shall be assigned to the Municipal Judges, whose amount is from US$1,000.01 to US$10,000.00. To address this assignment of jurisdiction due to their amount, see Articles 50 and 52 of the Civil Procedural Code

II. DETERMINATION OF THE AMOUNT

Article 616 of the Civil Procedural Code establishes how the amount must be determined in Ordinary Proceedings.

The first paragraph provides that the amount in ordinary proceedings shall be determined through the amount proposed by the plaintiff in the complaint, which shall include the following sum:

“The total of the liquid amount and the due interest claimed at the time of the filing of the complaint, without taking into account the fruits, interests, fines or damages claimed as accessories which are incurred subsequent to its filing.”

This provision creates confusion and is not necessary. The amount demanded shall always be that estimated by the plaintiff, being under the obligation to prove his/her statement, and the Judge shall recognize or not, on the basis of the evidence provided, what is claimed. Making distinctions with respect to the non-inclusion of interest, damages, etc., which are caused after the filing of the complaint, gives the impression that the Judge is limited by congruence, by pointing out that these items shall not be taken into account even if they have been agreed (penal clause or legal interest deducted from the same obligation as provided for in Articles 1040 and 993 of the Civil Code). We believe that this wording creates confusion, in that it could be understood that the competent judge by reason of the amount may only rule on the net sum and the interest due up to the date of filing of the complaint, without taking into account the other items which are incurred after its filing, even if they are derived from the same obligation.

As for the rest of the ordinals, we must abide, in terms of the determination of the amount, to the one that in the case of real property is assigned through the cadastral value, and in the case of personal property (chattels) it shall correspond to the specific appraisal which is made through experts. We consider that the presentation of this evidence constitutes a procedural prerequisite with respect to the admission and viability of the claim. In any case, such evidence shall be summary, that is, provided, in principle, without contradictory.

Article 616 expressly states the following:

“Article 616. Determination of the claim amount. In those proceedings that are heard before a municipal judge or circuit judge, the claim amount shall be determined as follows:

1. The total of the liquid amount and the interest due which are claimed at the time of the filing of the complaint, without taking into account the fruits, interest, fines or damages claimed as accessories which are incurred subsequent to its filing.

2. In survey and marking of boundaries processes, by the appraisal of the property in the possession of the plaintiff.

3. In proceedings that deal with the ownership or possession of property, for the appraisal thereof.

4. In division proceedings that deal with real property for the value of the appraisal and when they deal with personal property (chattels) for the value of the assets subject to the partition or sale.

5. In easement proceedings, by the appraisal of the servient property.

The amount shall be indeterminate only when it deals with matters of patrimonial nature or that are not provided for in the preceding paragraphs.

The plaintiff shall fix the claim amount in matters of patrimonial nature which do not deal exclusively with the payment of money and in which jurisdiction is determined by the claim amount.”

With regard to the provisions regarding the uncertainty of the claim amount, it is worth quoting Professor Ramiro Bejarano Guzmán who in his analysis points out the following, referring to the Colombian Procedural Code:

“The merger in the same procedural channel, of contentious matters of large amount and controversies that do not have patrimonial content, at first glance may suggest the false appearance of being contradictory, if only the patrimonial aspect is taken into account. In effect, when the legislator reserved the same procedural route for matters of large amount  and for those that cannot be assessed pecuniarily, it did so on the understanding that both forms of controversies deserve equal treatment, due to their cardinal importance.

That is to say, the importance of a controversy does not only arise from its economic estimation, since on certain occasions, there are others equally important, despite not allowing its monetary assessment.

It is important to specify that, when talking about contentious matters that do not deal with economic rights, we are only mentioning those that do not have a specific procedure. In fact, there are other cases that also have the characteristic of not dealing with economic rights, but they are not ventilated as ordinary of large amount, because the law has set forth another procedural form. Examples of the foregoing are the claims for nullity and divorce of civil marriage, contentious separation of bodies of civil and Catholic marriages, which are processed as verbal of large and small amount and not as ordinary, since the law expressly assigned them a different procedural form.”