The abuse of process between practice and legal science: notes about the simultaneus processus in the ius commune

Abstract

Between the 12th and 13th centuries, several papal decretals resorted to the term abusum in order to punish the misuse of the judicial system, and in particular the abuse of papal delegated jurisdiction (X 1.3.15; X 1.3.28). Some of them helped to establish the simultaneus processus, in opposition to efforts by parties to delegate connected cases to different judges in order to aggravate the overall case against the counterparties (X 1.3.43, VI 1.3.3). One such example is when creditors sought to initiate separate proceedings against the same debtor for each debt to be collected, which is still a topical issue in the courts nowadays. Compared to Roman law (Cod. 3.1.10), medieval canon law extended punishment to cases of subjective connection, thereby reinforcing the duty of good faith of the parties and their lawyers.

Keywords: abuse of process; papal delegated jurisdiction; simultaneus processus; connected cases.