For Maximiliano García Grande
ARTICLE 252: If the is partly a result of the litigation environment for both litigants, the costs will be offset or distributed judiciously by Judge in proportion to the success of each of them, but if the reduction of the claims of one party was relatively insignificant, shall the total condemnation costs and the adversary.
1. The distribution of costs in proportion to its success
CPCC Article 252 stipulates that before mutual successes (ie reciprocal maturity if viewed from the reverse perspective) the costs be distributed in proportion to its success. Situation which must be determined by the judge (art. 251 CPCC), which is likely to be clarified if the Judge does not issue on costs (art. 248 CPCC), but not to impose the costs in full to any party.
rule imposed by the rule under study is a logical consequence of the provisions of the first part of the art. 251 CPCC. Successes and maturity
reciprocal happen when both sides get some of its claims, the actor will be on the admission of the defendant's demands and to reject it. When both actor as a defendant fail that part of his claim is appropriate, there is mutual success and maturity. If the actor claimed five heads of damages and the defendant seeks the rejection of the five, there will be mutual success when supporting some (these would be the winner actor and respondent expired) and reject others (the actor would be the loser and the defendant the winner).
So far there are further complications: in case of mutual success costs should be distributed proportionally.
However, not always the claims of the parties can measure, and if they can, not all have the same entity and value. In contrast, the share of costs is always numeric as the costs and fees they are, and to establish how much you support each of the parties must go to set percentages.
Therefore, it is unanimous that the proportional distribution of costs should not be made from a purely mathematical approach but must be from a legal standard. That is, the Judge should not only assess the success or maturity obtained, but the entity of the claim and its importance in litigation.
For example, it is the same as rejecting a head of damages as part of a lawsuit arising from an accident, assuming all other items, which, in a trial with the same characteristics, rejecting the claim for a declaration of unconstitutionality of a rule not regulated by the fact happened, making room for the rest of the items. Rejected the institution must be evaluated, then, with a legal opinion.
be distinguished claimed items (being those various claims arising in one fact: moral damage, physical damage, lost profits, etc.) the amount of compensation of each item. In trials where various heads of damages are claimed for the purposes of considering whether or not reciprocal maturities, maturity should be considered to be reciprocal when it makes room for some items and reject others (of course, depending on the maturity entity may or not reflected in the assessment of costs), but not when you place all items diminishing the amounts and the actor left the amount of compensation subject to judicial discretion.
This approach will be reflected in the decisions that are then transcribed.
1.1. Court
"If the plaintiff claimed certain amounts of compensation in order to compensate for material and moral damage suffered, but said that estimate was without prejudice to the more or less the court ultimately determined, it is not considered accurate that there were reciprocal maturity if the amounts are decreased, and that the sentence amounts prudently established compensation for alleged, although less than the claimed figures, as the numerical difference was not due to rejection of some concepts, but ultimately relied of judicial discretion, which precludes the application for taxation of costs the reciprocal approach maturity. "
Court of Appeals in Civil and Commercial Rosario, sala 1 ª, 04/02/2010, SANCHEZ, Maria Inés c / COMPANY MAY 25 SRL and other s / Damages
"In determining that each litigant is responsible in paying the costs, must be taken into the body of each chapter has been claimed as welcomed or rejected, because should not be equal to that of the costs to be recognized all items or only some, but in cases where the actor has made a purely provisional estimate and prudent use of each item claimed, with subordination to the outcome of the test or the arbitration court and the amount received in the sentence is lower than originally valued, can be interpreted that the real value is not the one at issue in the lawsuit but eventually settled in Case, an approach is justified because the actor's original estimate was conditional and not smooth and flat, that is, subordinated to clarify factors which depended from the start, the amount of trial and can not be said to have mediated in excess the claim or real difference in the intended and agreed that the numerical difference since no legal significance since it joined the suit only so conditional and temporary. "
Court of Appeals in Civil and Commercial Rosario, room 1 st, Ac. No 463, 24.11.2009, "Travacio, Rodolfo Pascual c. Paterno, Roberto and other s. Damages ", Expte. No 514/2008
"The proportional distribution of costs should not be a purely mathematical criterion that should prevail but legal standard."
Court of Appeals in Civil and Commercial Rosario, Room 3 rd Integrated, 20/12/1999 - Marquez, Elizabeth A. c / Santa Fe Province and other s / Damages
"With regard to injury related to the sentencing imposed fully however costs partially hosting the application, in this case applies the criterion that states that the case of a process of such damages, in principle, the rule of art. CP 252 of the CC on costs assigned, in principle, to the right of the plaintiff arising from substantive law to obtain full reparation. It has been said to "dominate the statements that they consider the court costs should be borne entirely responsible for the damage suffered, though not fully flourish compensatory items intended by the actor ..." (The "Code of Civil and Commercial the Province of Santa Fe - doctrinal and jurisprudential analysis ", directed by George W. Peyrano, Rosario J, 1996, Volume I, ps. 782 et seq.)."
Court of Appeals in Civil Commercial and Rosario, Integrated th Room 3, 10/04/2001 - Stagnita, Roque v. Bank of Suquía s / Damages
2. The imposition of costs if the lawsuit that is favorable to both litigants equal proportion.
Many times I have had the opportunity to see where the Court, in deciding a lawsuit that is favorable to both litigants in the same proportion (ie 50% and 50%), the criterion of "costs by his order. " This approach is wrong, let's see why.
As stated on another occasion, the art. CPCC 250 rather than impose the "costs for your order" creates the category of "debtor of costs" as one who caused it to its own instance, adding the part that corresponds to the common. This is the true definition of the repeated phrase "costs for your order" that each litigant must pay the costs incurred at his instance.
If the art. CPCC 250 creates the category of "debtor's costs", which persist even after sentencing, Articles 251, 252 and 253 create and regulate more of "ordered to pay costs" (There are "debtors costs" if the request is in the process, but there are "condemned in costs" once they went above).
already in regulating the order for costs, the art. CPCC 252 specifies that the costs may be imposed in proportion to the sentence: "If the outcome of the suit partially unfavorable to both litigants, the costs will be offset or distributed judiciously by the judge in proportion to the success of each (... ). "
is, and having an order for costs may be imposed in proportion to his success. For example, if a party obtains favorable ruling for 70% of what is intended, the judge must impose the defendant to pay 70% of costs, charging the plaintiff with 30% of them.
For logical reasons, this criterion only applies when there is conviction, ie when ruling or interlocutory order to resolve the dispute or incident, as the proportion of the costs depend on the proportion of successful parties in their appeal.
However, the confusion that leads to failure of the courts arises when litigation is favorable to both litigants in the same proportion (50% and 50%). The rule of art. CPCC 252 imposes award costs to the actor 50% and 50% to the defendant, but the courts usually, in this case, impose "costs for your order." Is it the same? The answer is no.
should be imposed in this case costs by 50% to 50% actor and the defendant. Why?
First, the legal effect of requiring both parties to pay 50% of the costs are different for the purpose of attempting to enforce its order. In the first case the creditors of the costs have action against both parties in the former only against those who generated them.
Some examples:
If imposes costs by 50% to both parties ...
a) ... a lawyer for one party may initiate against the opposite pressure by payment of their fees in equal shares, whereas if the costs are by their nature can not (important if the client has no means to pay the fees).
b) ... the expert can act against both parties for the payment of their fees in equal shares, whereas if the costs are on the order can only be done against those who offered the test medium if the opponent expressed disinterest ( art. 198 CPCC).
Secondly, it is redundant to impose the costs for your order, because the costs are always in order. Although it has expired and has condemned in costs, provided the costs are on the order as they always who caused the costs to the request is indebted to them. The category "debtor of the costs" still exists after the sentencing. That is, who caused the costs debtor remains whether or not convicted.
In conclusion, in the event that the litigation which is favorable to both litigants in the same proportion (50% and 50%), the Court must impose costs by 50% to 50% actor and the defendant and not merely impose " costs for their order. "
3. The entity of maturity and bear the costs
When reducing the claims of one party is insignificant?
The question is common and the answers are varied. Each case must be analyzed since, as we said, not a mathematical criterion should prevail, but legal.
Notwithstanding this, it was considered that if a party has been successful in their claims at a rate of approximately 10%, this achievement is not the creditor to the title of "insignificant" in order to the provisions of art. 252 in fine CPCC (Protocol Agreements Room 4 of Appellate Chamber for Civil and Commercial Rosario, res. 56/86).
4. The conduct of the parties as a criterion for the assessment of costs
While the criteria should take into account the judge to apportion costs before legal maturity is reciprocal, not merely mathematical, this does not mean they do not cease to be objective, since the only thing to consider is the measure of maturity and success of the parties.
erroneously devise other types of consideration that the rule does not, one of them is the conduct of the parties. This criterion is not the norm and, for obvious reasons, should not be considered. So too the Supreme Court considered of Justice of Santa Fe in the case "Avellaneda Agricultural Union."
4.1. Court
"ritual in the civil and commercial code no provision any law that empowers the trial judges to distribute consuming litigation costs according to the behavior assumed by the litigants. "
Supreme Court of Santa Fe, 06.03.1909, Avellaneda c Agricultural Union / Maurencig, Rosendo and another-Executive-s / motions.
"The conduct of the parties may, or otherwise, lead to the implementation of institutions that punish dishonest judicial performance (eg procedural penalties), but the truth is that no legislative consecration that the rise a range of procedural rule causídica distribution. "
Supreme Court of Santa Fe, 03.06.2009, Avellaneda Agricultural Union c / Maurencig, Rosendo and another-Executive-s / motions.
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