The Code of Civil Procedure provides parties involved in a pending court case with the option to waive either the ongoing trial or the right claimed by one of the parties through this process. Below, we will outline the major differences between these two options and how to determine which one to choose if you seek an amicable resolution of the dispute.
WAIVER OF TRIAL (Article 406 of the NCPC)
When can it be done?
The plaintiff can waive the trial at any time, either verbally in a court session or through a written request. However:
– If the waiver occurs after the service of the summons, the defendant may request that the plaintiff cover the trial expenses.
– If the plaintiff waives the trial during the main trial, it will be mandatory for them to obtain the agreement of the other party in the process.
• If there are multiple plaintiffs in the case, all of them must waive the trial for the legal effects to occur.
• The waiver of trial can be total or partial.
How is the waiver of trial done?
– Verbally in a court session.
– Through a written request.
What are the effects?
The court will acknowledge the waiver request and order the closure of the case, thereby terminating the legal proceedings. In case the waiver is only partial, the subject matter of the trial will be limited to those claims for which the plaintiff still seeks resolution through the court. It is essential to consider that waiving the trial does not preclude the plaintiff from filing a new lawsuit against the same defendant, for the same subject and cause.
WAIVER OF CLAIMED RIGHT (Article 408 of the NCPC)
When can it be done?
The plaintiff can waive their claimed right at any point during the legal process. For the waiver of a claimed right, regardless of the procedural stage, the plaintiff is not required to obtain the defendant’s consent.
• The waiver of the claimed right can be total or partial.
How is the waiver of the claimed right done?
The request can be made through an authentic document or verbally in a public court session.
What are the effects?
The main effect is the permanent termination of the civil case. The court will issue a judgment rejecting the claim on its merits and deciding on the trial expenses. It is crucial to note that the plaintiff will no longer be able to file another lawsuit against the same defendant with the same subject and cause, as the authority of res judicata comes into play.
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Bianca Dan – Attorney at Law
