Libro Quinto Título V. Modos excepcionales de terminacion del proceso

Discontinuance may be total or partial.

Total discontinuance is of the proceedings or of an appeal affecting the essence of the matter; and partial discontinuance is only of an appeal, incident or exception on points that do not terminate the proceedings and on proposed evidence.

Every request for discontinuance must be formulated specifying its content concretely. Discontinuance may be effected whatever the state of the proceedings.

Anyone may discontinue the proceedings they have commenced or the opposition they have asserted in proceedings in which they are a party.

Such discontinuance bars renewal in the future of the same proceedings and entails waiver of the respective right.

The consent of the opposing party is not required to discontinue the proceedings.

The withdrawal of an appeal, exception or incident leaves the appealed decision final and the exception or incident without effect.

For partial withdrawal, the consent of the opposing party is not necessary.

Those who defend the interests of minors, incapacitated persons or absentees may not discontinue the proceedings or an appeal or defense affecting the merits of the case. Nor may those who defend State or municipal interests do so.

For the withdrawal to be valid, the intent of the person making it must appear in the record, with their signature legalized by a notary or acknowledged before the judge at the time of filing the request; and if they are unable to sign, another person shall sign at their request.

If the provisions of this article are not complied with, the request shall be dismissed outright.

Once the withdrawal has been filed in valid form, the judge shall issue a decision approving it.

Discontinuance of the proceedings does not prevent the claims that the opposing party may bring for the damage and losses caused by the discontinued proceedings.

The First Instance lapses upon the passage of six months without continuing it. The Second lapses upon the passage of three months. These time limits are continuous and include non-working days.

Lapse of the instance does not apply in the following cases:

1º.When the proceedings are in a state ready for decision without any action by the parties being necessary.

2º.In arbitral proceedings.

3º.In singular execution proceedings that are stayed due to absence or insufficiency of attachable property of the debtor, or because the executing party is receiving partial payments under a judicial or extrajudicial agreement.

4º.In singular execution proceedings based on a real guarantee.

5º.In proceedings to enforce a final judgment.

6º.In collective execution proceedings.

7º.In the special proceedings referred to in Book IV of this Code.

Lapse of the instance precludes continuation of the counterclaim, if any. The plaintiff may not seek lapse of the First Instance solely in relation to the counterclaim.

Time limits run from the date of the last procedural act performed in the proceedings, whether or not it is a notification.

Any action taken by any of the parties and any procedural act performed in the proceedings interrupts the lapse.

The petition for lapse shall be processed in the form of an incidental proceeding and, within the evidentiary period, evidence corresponding to the legitimate impediment of the party that did not prosecute the proceedings may be adduced.

Lapse of the First Instance may also be requested in the Second Instance, when the record is there on an appeal other than from the judgment and six months have elapsed without action therein; but in this case, the Superior tribunal shall remit the record to that of First Instance to hear the lapse as raised.

Whoever wishes to take advantage of the lapse shall, before the proceedings are resumed, request the judicial declaration in that regard, for otherwise it is deemed waived.

Lapse occurring in First Instance restores things to the state they were in before the claim.

Lapse occurring in Second Instance leaves the appealed decision final.

Lapse in First Instance renders the procedural acts performed ineffective, and prevents refiling the proceedings, unless it concerns rights that have not prescribed, in which case new proceedings may be commenced.

Prescriptions interrupted by means of the summons of the defendant continue to run as if the interruption had not occurred, once lapse has been declared.

Those who defend the interests of minors, incapacitated persons or absent persons, or State or municipal interests, shall be personally liable for the damage and losses they cause if they give rise to the lapse of the proceeding, and shall likewise be subject to the consequent criminal liability.

Whoever gives rise to the lapse of the instance shall be ordered to pay the costs incurred.