Frivolous suits: third paragraph of article 96 c.p.c. — when does bad faith subsist?

This paper concentrates on the criterion on the basis of which the conduct sanctionable in the terms of article 96, third paragraph c.p.c., is added to. In particular, a criterion is offered of ‘posthumous prognosis’ for evaluating bad faith of negligence felt to be necessary. Finally, a review of the relationship between the provisions set forth under articles 88, 91 and 96 c.p.c is set out.

The third paragraph of art. 96 c.p.c. foresees that: ”in any event, when pronouncement is made in the terms of art. 91 in respect of costs, the judge, even as a matter of course, may also sentence the losing party to payment for the benefit of the adversary party of an equitably determined sum”. If it is felt — as I have sought elsewhere to demonstrate — that the sole choice possible is sanctioning only conduct featuring bad faith or negligence, it is also necessary to understand more fully what can be stated concerning bad faith or negligee being spoken of. Well, I am persuaded that a judgement in respect of the frivolous nature of trial behaviour of the party is properly expressed if a criterion is adopted that may be called “posthumous prognosis”…

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