Prescription extintiva must be alleged in the initial instance
Posted by Manuel Casal | Section Juris. procedural
"However, irrespective of the contract that the parties were tied to civil or commercial matters, and that the limitation period was interrupted or not by the plaintiff on 29 May 2001, this Court can not estimate a exception of prescription alleged pending conclusions as from the year 2003 has seen repeatedly that the prescription extintiva "must be alleged in the initial instance" (Judgment of 17 July 2003 ), so that the opposing party may exercise his right of defense and contradiction as widely as possible and with the adverse situation of equality. As highlighted in the judgment of this Chamber, 18 March 2003, although it is true that as a provision in the Code of Justinian (8,36,8) prescription may be alleged in the litigation and any time that some judgments of this room, especially the 10 July 1997, 30 November 2000 and 25 April 2002, he admitted, "this possibility is to adapt the principles of procedural act in the process Civil and allow, in accordance with the provisions in Article 10 of the Constitution, which both litigants are on equal footing and have equal chances of defense. " Therefore, from the time when the Constitution took effect admitted that the alleged procedural exception at one point that prevents the adverse exercise his right of defense in all its breadth, either phase of the conclusions in the first instance and appeal, is to deprive the adverse and trying to argue what the reasons are opposed to it, and there is a serious limitation to the principle of contradiction governs the procedure and a breach of the principles enshrined in the Constitution, considering that the taking of evidence in the second instance is very limited and also emphasizing that, as has repeatedly stressed the Jurisprudence of this room and others in Sentences of 22 January 1998 and 13 April and 13 October 2000, the prescription may not be appreciated by the courts. "
Judgment of the Civil Division of the Superior Court dated 26/10/06, speaker E. Amat, Aunt 088/06.
Tags: prescription
