Herald of Civil Procedure

We in a citing index:

Austrian Code of Civil Procedure of 1895 The Doctrine of Procedural Objections and Procedural Prerequisites (continuation)

This section contain some additional arguments for that prejudicial objections pertain only to claims competition, i.e. these objections have substantial, not procedural nature. Misunderstanding of this is caused by usual confusion of right of action and trial. In respect to prejudicial objection legal definition of exceptio fully stand the test: this objection also is opposed to the claim «to exclude that are the demand and the adjudication» («ad excludendum id, quod in intentionem condemnationemve deductum est»). When it has reached the conviction that the basis for the objections are private interests, the fact that it is left to the defendant’s discretion whether he wants to implement his interests or not, no longer able to cause confusion. Moreover, it should be pointed out that in this respect form «exceptio» as the coordinated with «intentio» negative (irritant) conditional is the accurate expression of the substantive legal relations: the defendant’s counter-claim, impeding the claimant’s demand, can not be presented and expressed in a more appropriate manner. 

Keywords: civil process; claims competition; history of civil procedure.

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Oskar Bülow