NCTM

European Top 100 position: 42

The frivolous suit: third paragraph of article 96 c.p.c. — when does it apply?

This paper offers a systematic interpretation of article 96, third paragraph c.p.c. concentrating on the grounds wherein the judge may make award: what subjective element is required? The conclusion is that bad faith or negligence is necessary. Later, the punitive — not indemnity — nature of the award made in the terms of article 96, third paragraph c.p.c. is highlighted.

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”.

Immediately, from a first reading, the provision appears somewhat enigmatic: and this both in respect of what (little) it says, and what (much more) on which it is silent.

Indeed, the addition (in the terms of art 45 of the law dated 18 June 2009, no. 69 by which the ritual code was replaced anew) of the new paragraph requires an effort of interpretation that, if applied solely to its lean wording, would without a doubt lead to no useful result…

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