CHAPTER I. ACTION(SHARE)

A. Concept of action(share)

Of the Latin actio , movement, activity or accusation, the above mentioned word has a procedural character. The procedural action(share) is concebida as the juridical power to provoke the activity of dijudication of an organ that decides the litigations of juridical interests.

B. Precedents

The procedural action(share) has remote origins. In Rome she is studied within three diverse periods of the civil Roman procedure:

1. The epoch of actions(shares) of the law (754 B.C. up to the half of the 2nd century B.C.).
2. The epoch of the formulaic procedure (the second half of the 2nd century B.C. up to the 3rd century of the Christian age).
3. The extraordinary procedure (3rd century A.D. up to Justiniano and his(her,your) codification, 529 to 534 of our age).

In the primary stadium it is said the action(share) that they were solemn declarations accompanied of ritual gestures that the individual declares and realizes before a justice in order to proclaim a right that is discussed or to realize a fullly recognized right. Of there that the actions(shares) were dividing in declarative ( legis actio sacrament, per judicus arbitrive postulationem and per condionem ) and executives ( legis actio per manus iniectio and per pignoris capionem ).

Later, in the formulaic period, the formulae before exclusive of the knowledge of the College of the Pontiffs leak out, multiply and relinquish the formulistic previous rigorismo , Roman people to be adapted to the increasing needs of an explosive. Nevertheless, it is The Celso's most known and long-lived conception the one that has had major impact and permanency in the production(elaboration) of the definition of procedural, like that action(share) the right to chase(prosecute) in judgment(reason) what owes us.

In the extraordinary period one of the currents most spread on the juridical nature of the procedural action(share), is the traditional doctrine, which has between(among) his(her,your) out-standing sostenedores the founder of the Historical School of Law, Federico Carlos de Savigny, who estimates to the action(share) as the right that it(he,she) is born of the violation of a civil right and as the exercise(fiscal year) of the substantive law itself.

In the contemporary epoch many exhibitions more have tried to base the juridical nature of the procedural action(share), between(among) that they stand out of Chiovenda : the action(share) like autonomous optional right; Kohler : as a right of personality; Couture : as a form of the constitutional law of request; Kelsen that superimposes the action(share) to the civil right; Coviello : faculty(power) to invoke the authority of the State for the defense of a right with two stadiums (potential and action(performance)).

The most modern and solid conceptions of procedural acción incline to qualify it as an abstract right to act procedural of public, civic, autonomous character, to claim the governmental intervention across the presentation of the jurisdictional activity and to achieve a just composition of the litigation raised ( Carnelutti , Rocco , Liebman , Calamandrei ).

For your(his,her,their) part, the doctor Arellano García, conceives to the action(share) as the dynamic conduct that the subject realizes to put in movement and to strike to the world that surrounds it. In the omission a stagnation is, an abstention of conduct, a paralyzation of his(her,your) to do, is one not to do, not to act.

C. Classification of the actions(shares)

1. Royal(Real) and personal actions(shares)

This criterion clasificativo attends to the type of rights that use as foundation to the respective action(share), if the action(share) is founded on a royal(real) right it will be a question of a royal(real) action(share). If it(he,she) rests(relies) on a personal right it will be a question of a personal action(share).

The royal(real) actions(shares) have for object guarantee the exercise(fiscal year) of some royal(real) right, that is to say, those that the plaintiff exercises to protest or to make to cost(to be worth) a right on some thing, with full independence of any personal obligation on the part of the defendant.

The personal actions(shares) are those that have for object guarantee a personal right, that is to say, they will be deduced to demand the fulfillment of a personal obligation, already be of giving, of doing or of not doing certain act.

2. Actions(Shares) of penalty, declarative, constitutive, you will protect and executives

This criterion clasificativo capture in counts(tells) the different species(kinds) of presentations that they are in the habit of claiming.

1. The actions(shares) of penalty are those who claim of the defendant a presentation of giving, making or not doing. With them there is claimed the immediate execution of the right declared by the judicial judgment; his(her,your) essential end(purpose) is the execution of the failure(judgement).
2. The declarative actions(shares) are those in which the actor tries to end with a situation of uncertainty that turns about the right that uses him(her) as foundation to the action(share). The jurisdictional organ will limit itself to the official recognition of the right in the form claimed by the plaintiff. That is to say, these actions(shares) consist of making the right certain and not in demanding of the defendant a certain presentation.
3. The constitutive actions(shares) are those that direct for him(you,them) to obtain the creation, modification or the extinction of a right or an obligation, or a juridical situation.
4. The actions(shares) you will protect, preservativas or preventive they are those that have as object preserve the future efficiency of a definitive action(share) in the person or in the goods of the defendant.
5. The executive actions(shares) are those that derive from a document with specific qualities that it(he,she) allows, since they exercise, before the definitive judgment, to affect provisionally the patrimony of the debtor.

3. Nominated and nameless actions(shares)

This criterion clasificativo attends to the fact of which the legislator has foreseen expressly in the legislation a certain type of action(share) and enclosed it(he,she) has attributed a certain denomination to him(her).

1. The nominated actions(shares) are those in which the actor will be able to mention his(her,your) legal denomination and him(her) there will be applicable all the dispositions(regulations) that apply to this type of action(share), since the denomination is useful to identify her with all his(her,your) legal proceeding consequences.

1. The nameless actions(shares) are those that the legislator they did not foresee a certain denomination but, that tried(meant) there will no be reason not to consider her and to proceed to the performance(discharge) of the jurisdictional function though only there will be applied the legal rules applicable to the actions(shares) in general, so, there will no be specific rules that derive from a special category of action(share).

C. The actions(shares) that derive from the Code of Civil Procedures for the Federal District

The articles first to the thirty-fourth one, of the first chapter, of the first title(degree), of the Code of Civil Procedures for the Federal District establish everything relating to the actions(shares) contained in this classification.

1. Royal(Real) actions(shares)

1. Protest action(share) (art. 4). This action(share) has characters combined of action(share) of penalty and of declarative action(share), as it(he,she) parts with the article 4 º with the code on having established: The recovery compete to whom it(he,she) is not in possession of the thing, of which it(he,she) has the property, and his(her,your) effect will be to declare that the actor has the domain(control) over she(it) and she(it) is delivered to the defendant by his(her,your) fruits and accessions in the terms(ends) prescribed by the Civil Code. It is a question of an action(share) which holder has to be the owner of the thing and not a simple holder. It is necessary to to aim that in you cause the protest action(share) it will be also a constitutive action(share) when one claims the nullity of the title(degree) that, with minor merits, the defendant has. There establishes the article 5 º that this action(share) prepares(anticipates) the possibility that the defendant assigns to him(her) to a third party the responsibility of a judgment(reason).

Likewise, the article 6 º indicates that the holder who should deny the possession will lose it in benefit of the plaintiff. The article 7 º determines that they can be demanded(sued) in recovery, auque do not possess the thing, the holder who to avoid the effects of the protest action(share) stopped possessing and who is forced to return the thing or his(her,your) estimation if the judgment will be condemnatory.

1. Possessory action(share) (art. 9). To the buyer with just title(degree) and of good faith him(her) compete the action(share) in order that, even if it(he,she) has not expired, it(he,she) returns the thing with his(her,your) fruits and accessions in the terms(ends) of the article 4 º, the holder of bad(wrong) faith, or the fact that having title(degree) of equal quality it(he,she) has possessed in less time than the actor. This action(share) does not proceed in the cases in which both possessions were doubtful or the defendant will have his(her,your) registered title(degree) and the actor not, as well as against the legitimate owner. In this disposition(regulation) there is a comparison to the protest action(share) regarding the effects of the action(share), since it(he,she) indicates that the restitution of the thing will be obtained by his(her,your) fruits and accessions in the terms(ends) of the article 4 º (protest action(share)). The beneficiary of the action(share) must be that holder who has just title(degree) and act of good faith, and in addition, in situation to prescribe the thing. There will have the defendant's character the holder of bad(wrong) faith, or the fact that having title(degree) it(he,she) has possessed in less time than the actor. The object of the action(share) is the recovery or the restitution of the possession of the good mueblo or building.

1. Action(Share) negatoria (art. 10). This action(share) is gathered in the article 10 º where the holder of the action(share) is not necessarily the owner, so, the holder can try(mean) the action(share) under the pretext of owner or that has royal(real) right on the property. This action(share) only is proceeding in relation with real estate. The object of this action(share) is of obtaining the declaration of freedom or that of reduction of charges of a property, the demolition of works or signs that import charges, the tildación or annotation in the Public Record of the Property: Together they will be able to claim the payment of hurts(damages) and prejudices and in form quota will be able to proclaim also that the defendant prevents the respect of the freedom of the building.

1. Action(Share) confesoria (art. 11). This action(share) compete to the holder of the right royal(real) building and to the holder of the dominant land who is interested in the existence of the servitude. One gives this action(share) against the holder or juridical holder who counter laughs the charge (convict). The object of this action(share) is to obtain the recognition of the existence of the charge, to declare the rights and obligations that turn about the same one and to obtain the payment of fruits, hurts(damages) and prejudices, as well as also to make stop the violation of the charge and, in case of judgment absolutoria , the actor can demand of the convict that it(he,she) guarantees the respect of the right.

1. Hypothecary action(share) (art. 12). This action(share) guardianship the royal(real) right of mortgage. The hypothecary creditor has the plaintiff's character if the action(share) straightens up to the payment or to the marshaling of the credit that the mortgage guarantees. Nevertheless also they will have the actor's character, any of the subjects that they have right to that a necessary mortgage is constituted since the same article allows that the hypothecary action(share) should be tried(meant) to construct a mortgage. With the defendants' character they can fungir : the debtor with holder's character under the pretext of owner of the mortgaged property in the country, other creditors if the hypothecary action(share) is exercised to construct, to extend or to register a mortgage or if it is a question of a credit marshaling, and the third, new owner or juridical holder that the building acquires after annotated the demand(lawsuit) in the Public Record of the Property. The object of the hypothecary action(share) is to construct, to extend and to register a mortgage and, to obtain the payment or marshaling of the credit that the mortgage guarantees.

1. Action(Share) of request of inheritance(heredity) ( arts . 13 and 14). This action(share) guardianship the right of the inheritor to which his(her,your) right is recognized in justice to the goods of of cujus . Is confirmed his(her,your) character of royal(real) action(share) since it is prosecuted to the obtaining goods, which will have to deliver the part demanded(sued) with his(her,your) accessions. There has the holder's character of the action(share) the testamentary untestamentary inheritor. The defendant's character corresponds(fits) to the executor, the holder of the hereditary things with the character of inheritor or cessionary of this one, the subject that does not invoke title(degree) any of possession of the hereditary good or fraudulently it(he,she) stopped possessing it. The object of this action(share) is of obtaining the inheritor's declaration (the actor), obtaining the delivery of the hereditary goods and of the accessions to the hereditary goods, obtaining indemnification and account surrender.

1. Action(Share) of the coproprietor (art. 15). Coparcenary exists when a thing or a right belong(concern) pro-undividedly to several persons. Well then, in the supposition of which the common property that one affects in some form and that the coproprietor wants to exercise some action(share) tending to the suitable guardianship of his(her,your) right of coparcenary, though the coproprietor is not a total owner of the affected good, gives him(her) this action(share) to protect his(her,your) right. The coproprietor can deduce the actions(shares) relative to the common thing, as owner, except agreement to the contrary, or special law. It(he,she) cannot transigir compromise, nevertheless, in umpires the business, without unanimous assent of other coproprietors.

1. Action(Share) interdictal to retain the possession ( arts . 16 to 20). This action(share) interdictal and possessory he(she) prepares(anticipates) a defense of the holder against acts of disturbance proceeding from third parties you present. The disturbance consists of preparatory tending acts directly to the violent usurpation or when the exercise(fiscal year) of the right prevents. It(he,she) is titles this action(share) the holder juridical or derived from a property since it is not granted to the holder of personal property. The agitator will have the convict's character, the fact that I order the disturbance (intellectual author), which takes advantage of the disturbance, the successor of the agitator. The object of the injunction consists of putting term(end) to the disturbance, of indemnifying the holder, backing for the defendant of that it(he,she) will not return to disturb, to threaten with fine to the defendant or arrest for the case of repetition.

1. Action(Share) interdictal to recover the possession ( arts . 17 and 18). He is a holder of this action(share) the holder of the juridical possession original or derived from a property. They have the character of original holder and in addition the one who possesses the useful possession, the owner, while the character of derivative holder it has the lessee, the usufructuary, the commodatory and the holder by virtue of a right of room. They will have the character of passive subjects. The despoiler (the one who deprived of the possession the plaintiff), which has ordered the spoliation (intellectual author), that one who takes advantage of the spoliation, the successor of the deforciant. The object of this action(share) is that the actor recovers the possession and, in addition: he is indemnified against the hurts(damages) and prejudices, to obtain that the defendant guarantees his(her,your) abstention, to threaten the defendant with fine and arrest for the case of repetition.

1. Action(Share) interdictal of new work (art. 19). For the effects of this action(share) he(she) understands himself(herself) for new work, not only the construction of new plant(floor), but also the one that is realized on ancient building, adding him, taking him or giving him(her) a different form. They constitute the object of this action(share), the suspension of the conclusion of the new work harmful to the holder of land or royal(real) right on the same one, the demolition of the new work, the modification of the new work and restitution of the things to the previous condition(state) of the new work. They can be fastened actors in this action(share) the holder of the land affected by the new work, the holder of the land affected by the new work or the local neighbor if the new work is constructed in goods of common use. It is a passive subject of the action(share), who gave the orders to construct the new work, be holder or detainer of the homestead where it is constructed. In this one injunction can produce an immediate measure to him(you,them) on the part of the juzgador who can deliver a judgment consists of the suspension of the construction until the judgment(reason) is solved.

1. Action(Share) interdictal of dangerous work (art. 20). This action(share) is given to the holder juridical or derived from a contiguous or nearby property who could suffer or suffer for the ruin or precipice from other one, fall of a tree or another analogous object. His(her,your) purpose is it of adopting urgent measures to avoid the risks that there offers the evil been of the above-mentioned objects, to obtain the total or partial demolition of the work or the destruction of the dangerous object. They can be fastened actors those that have private or public right of step along the surrounding areas of the work, tree or another dangerous object. In this action(share) since(as,like) in the previous one suspensive decisions take before the judgment.

1. Actions(Shares) of third parties ( arts . 21 to 23). This action(share) consists of the intervention of third parties, with own(proper) right, of a judgment(reason) followed(continued) by different persons. Not only it(he,she) includes the intervention of third parties in order that he(she) exercises the actions(shares) that have with regard to the problem debated in a certain judgment(reason), but also there are called they in order that they prejudice brings the judgment that is dictated in a judgment(reason) in which there are elucidated questions linked with his(her,your) rights and his(her,your) obligations. There exist diverse hypotheses in which a third party might exercise rights of action(share) in judgment(reason) to which it(he) is called or in which, he(it) has come to deduce own(proper) rights.

2. Actions(Shares) of Marital status (art. 24)

1. These actions(shares) take as an object the questions relative to the birth, death, marriage(couple) or nullity of this one, filiation, recognition, emancipation, guardianship, adoption, divorce and absence, or to attack the content of the witnesses of the Civil Record in order that they are annulled or rectify. In these actions(shares), it(he,she) has to split of the supposition of which, it is a question of a contentious procedure directed against whom it(he,she) is going to have the defendant's character that, normally she will be the person who is linked by the actor in the marital status about which it(he,she) treats itself(himself,herself).

1. Personal actions(shares)

1. Action(Share) of enrichment without reason (art. 26). The harmed one takes the actor's character as an enrichment without reason. There will be demanded(sued) the one who prospered with detriment of other one. The object of this action(share) will be to demand an indemnification that will be quantified by the measure in which demanded(sued) part prospered.

1. Action(Share) of grant of title(degree) (art. 27). The lack(mistake) of legal title(degree) in the actor, gives food to the exercise(fiscal year) of this action(share) in order that the above mentioned title(degree) is granted him(her). He will be an actor the subject that lacks legal title(degree) and that, by this fact is harmed. There will be demanded(sued) the person who is forced to extend the title(degree) that it(he,she) has omitted. It is an object of this action(share) that the obliged one extends the corresponding document.

1. Action(Share) of jactitation. In this action(share) the actor is forced to exercise his(her,your) procedural law of action(share), and that can force to nobody to try(mean) or continue an action(share) against his(her,your) will except when someone publicly should boast about that other one is his(her,your) debtor, or about that has to deduce rights on some thing that other one possesses. The action(share) of jactitation exercises an action(share) to force the convict fastened to exercise, in turn, an action(share). Therefore, it is an object of this action(share) to force the boastful one to deduce the action(share) that it(he,she) affirms to have in the term that the juzgador indicates to him(her), apercibido of that, if it(he,she) does not do it, he will be had for desisted from the action(share) that has been a matter of the jactitation. It is a subject demanded(sued) in this action(share) the person who publicly (glaringly) boasts about that other one is his(her,your) debtor, or about that has to deduce rights on some thing that other one possesses. He(She) is a fastened actor or plaintiff in this action(share), the holder of the thing I concern of which(whom) has been indicated by the boastful one that there will be deduced rights or the person whom debit being of the boastful one has imputed.

1. Forced action(share) (art. 32). In this action(share), since(as,like) in the previous one, the actor does not exercise voluntarily the right of action(share), but one sees compelled to it. It(he,she) can force nobody to try(mean) or continue an action(share) against his(her,your) will except: when for arbitration having intervened before a minor judge for major quantity of the one that fixes the law for the business of his(her,your) competition, the cars have been sent to another court and the third opponent do not meet(compete) to continuing the arbitration; when someone has action(share) of other one, to whom it could be required that it(he,she) deduces it, object or continue certainly, and if it is mentioned for it it(he,she) will refuse, it(he,she) it will be able to use that one. The object of the first supposition is of that the action(performance) of the third party is continued in the arbitration and there is not stopped the judgment(reason) that waits for the return of the cars. The object of the second supposition is to excite it in order that it(he,she) deduces it, object or continue.

D. Actions(Shares) that derive from the Civil Code for the Federal District

1. Action(Share) for the division of common thing (art. 939). Those who are situated under a regime(diet) of coparcenary are not forced to remain indefinitely pro-undivided. To those who as any title(degree) have the legal domain(control) of a thing, they it cannot be forced to preserve undividedly, but in the cases in which, for determination of the law, the domain(control) is indivisible. If the domain(control) is not divisible, or the thing does not admit comfortable division and the participants do not agree about that awarded to someone of them, one will proceed to his(her,your) sale and to the reparticipation of his(her,your) price between(among) the interested parties. The faculty(power) of division of common thing has to be raised before the judge, and the object of the action(share) will be to establish an equitable division of the common thing. They are applicable to the division between(among) participants the rules relating to the division of inheritances(heredities).

1. Action(Share) of nullity. The acts executed against the tenor of the prohibitive laws or of public interest will be void, except in the cases in which the law arranges the opposite. The contract can be invalidated: for legal disability of the parts or of one of them; for vices of the assent; because his(her,your) object, or his(her,your) motive or end(purpose) is illicit; because the assent has not demonstrated in a way that the law establishes. The action(share) of nullity will exercise the part of the juridical act that turns out to be affected by the irregularity of the same one and the demanded(sued) part will be the part that derives prerogatives of the void act. The object of the action(share) will be that one declares the nullity of the act and he is deprived judicially of his(her,your) effects and, in his(her,your) case, which the things turn(become) to the condition(state) that had before the void act and, of not being possible, be condemned to the payment of hurts(damages) and prejudices.

1. Action(Share) of simulation (art. 2180). It(he,she) is in the habit of happening that a juridical seemingly valid act but, affected of nullity for simulation, effects are tried to give him(her) as if it(he,she) was royal(real) for what, the action(share) of simulation has been established for precaverse of him(it). There is simulated the act in which the parts declare or confess falsely what actually(indeed) has not happened(passed) or has not agreed between(among) them. The simulation gives place to the nullity. The nullity of the simulated acts can be requested by the third parties harmed with the simulation, or the Attorney General's office when this one was committed in transgression of the law or to the detriment of the public estate. It is an object of this action(share), besides the declaration of nullity, the restitution of the thing or of the right to whom it(he,she) belongs(concerns), with his(her,your) fruits and interests, if they will be.

1. Action(Share) of nullity for acts in creditors' fraud (art. 2163 2179). This action(share) protects the interest of the creditors in opposition to the acts that his(her,your) debtor realizes to defraud them. Also known as action(share) pauliana , he(she) finds his(her,your) application when the goods of the debtor have been sold, without the creditors have been paid entirely. The acts celebrated by a debtor to the detriment of his(her,your) creditor can be annulled, by request of this one, if of these acts it turns out to be the insolvency of the debtor, and the credit by virtue of which the action(share) is tried(meant) is previous to them.

1. Action(Share) of rescission (art. 1949 and 1950). Before a situation of breach of the passive subject of the juridical relation, optionally, it(he,she) has the subject right(straight) pretensor or fastened actively, to choosing between(among) this action(share) of rescission or the action(share) of fulfillment. The faculty(power) to solve the obligations is understood implicit in the reciprocals, for the case of which one of the obliged ones will not fulfill what him(her) incumbe . The harmed one will be able to choose between(among) demanding the fulfillment or the resolution of the obligation, with the resentment of hurts(damages) and prejudices in both cases. Also it(he,she) will be able to ask for the resolution still(yet) after having chosen for the fulfillment, when this one will turn out to be impossible.

1. Action(Share) of forced fulfillment (art. 1949). In the situation of breach of an obligation for one of the subjects of the juridical substantive(substantival) relation, already established in the previous action(share) that, the subject pretensor can choose between(among) demanding the fulfillment or the resolution of the obligation, with the indemnity of hurts(damages) and prejudices in both cases. Certainly that will not be able to try(mean) both actions(shares) for being contradictory but, yes will be able to ask for the rescission of the contract after having chosen for the forced fulfillment, if this one will turn out to be impossible. The object of the action(share) will be obtains the forced fulfillment of the due conduct more the indemnity of hurts(damages) and prejudices.

1. Action(Share) redhibitoria (art. 2142). This action(share) tends to the resolution of the sale and to the complete(upright) restitution of the price with his(her,your) interests. A modern denomination of this action(share) would be that of action(share) of rescission for secret vices since in the commutative contracts, the alienating one it(he) is obliged to the reparation for the secret faults of the alienated thing that makes her(it) improper for the uses to which she(it) is destined, or that diminish in such a this(this one) way it(he,she) uses, that of having known it the buyer will not have done the acquisition or it(he,she) would have given fewer prices for the thing. This disposition(regulation) is more wide than the simple dealing of things with secret vices since it includes other juridical acts in which there is transmitted the domain(control) of a thing that later to the transmission of the domain(control) appears with secret vices. The consecration of both actions(shares) derived from the existence of secret vices when the based exception does not take place(is not produced) they consist in that the buyer can demand the rescission of the contract and the payment of the expenses that for him(it) it(he,she) had done, or that reduces a quantity provided with the price, in the opinion of experts.

CHAPTER II. EXCEPTION

A. Concept of exception

Word derived from the Latin exceptio , exception. The exceptio originated in the stage of the process for formulae of the Roman law as a way of defense of the defendant. It(he,she) was consisting of a clause that the justice, by request of the defendant, was inserting in the formula in order that the judge, if there were turning out to be proven the circumstances of fact invoked by the defendant, was absolving this one, even if the intentio of the actor was considered to be founded. The position of the exceptio in the formula was between(among) the intentio and the condemnatio .

Nowadays they can emphasize two meanings of the exception:

Abstract sense. It is the power that the defendant has to object, opposite to the pretension of the actor, those questions that affect the validity of the procedural relation and prevent a pronouncement of bottom(fund) on the above mentioned pretension (procedural questions), or those questions that, for contradicting the foundation of the pretension, try(get) a pronouncement of absolute bottom(fund) (substantial questions).

Concrete sense. They are the concrete questions that the defendant raises opposite to the pretension of the actor, in order to be opposed to the continuation of the process, invoking that have not satisfied the procedural budgets (procedural exceptions), or in order to be opposed to the knowledge, on the part of the judge, of the foundation of the pretension of the part actora , adducing the existence of extinctive, modificative or imperative facts of the juridical relation invoked by the plaintiff (substantial exceptions). That is to say, inside this concrete sense of the exceptions, the procedural ones they object the valid integration of the procedural relation and prevent a pronouncement of bottom(fund) on the pretension of the actor, whereas the substantial ones contradict to fundamentación herself of the above mentioned pretension and try(get) a judgment desestimatoria .

The doctor Arellano García defines the exception as the civil right that there possesses the natural or moral person who has the character of demanded(sued) or of counter demanded(sued) in a process, opposite to the juzgador and opposite to the part actora or reconviniente in his(her,your) case, to contradict the established for the actor in the demand(lawsuit) or determined by the reconviniente in the counterclaim and, whose(which) object is to stop(detain) the process or to obtain favorable judgment in partial or total form.

B. Classification of the exceptions

1. From the point of view of which the exception is based on a procedural disposition(regulation) or on a disposition(regulation) of bottom(fund), I could be spoken about adjectival exceptions or substantive(substantival) exceptions.

1. From the point of view from which the exception could suspend the procedure in a judgment(reason) or does not paralyze it, we might mention exceptions of previous and special pronouncement and common or normal exceptions.

1. From the point of view of his(her,your) denomination and being that the legislator in occasions refers to certain exception as a certain denomination and other times it(he,she) alludes to exceptions in general, it is possible to refer to nominated and nameless exceptions.

1. From the point of view of which the exceptions direct for him(you,them) to stop the march of a process or of attacking the pretensions of the part actora or counterclaimant in order that there is a favorable judgment, the dilatory exceptions and the urgent ones can be mentioned.

1. From the point of view of the procedural moment in which it(he,she) should make cost(suit), there will be exceptions that will have to intervene in a term(end) more brief than the granted one to answer the demand(lawsuit) and others that, will make cost(be worth) simultaneously by the writing answer; in addition others that, will make cost(suit) with posteriority to the answer for having the character of supervenientes .

1. From the point of view of which the exceptions are endorsed or not, for the logic, for the witnesses of cars and for the juridical procedure implicables to them, one can refer to founded or groundless exceptions.

1. From the point of view of which the exceptions are promoted adequately in conformity with the procedure that govern the process, or infringe the procedural procedure that govern his(her,your) origin, one can speak about proceeding or unfounded(inappropriate) exceptions.

C. Exceptions that derive from the Code of Civil Procedures for the Federal District

The articles of the thirty-fifth one to the cuatrigésimo , of the second chapter, of the first title(degree), of the Code of Civil Procedures for the Federal District establish everything relating to the exceptions contained in this classification.

All the procedural exceptions that the defendant has it(he,she) must make them cost(suit) on having answered the demand(lawsuit), and in no case they will suspend the procedure.

It is necessary to aim that all these exceptions have the character of delays, since they prevent the pronouncement on the principal question of bottom(fund) raised in the judgment(reason). That is to say, they put an obstacle to which there takes place(is produced) the normal pronouncement that must proceed in the judgment(reason) about which it(he,she) treats itself(himself,herself).

1. Exception of incompetence of the judge (art. 37). Knowing in advance that any demand(lawsuit) must be formulated before the competent judge and that the operated is void for the same one if it will be declared incompetent, it is possible to continue with the explanation establishing that can be promoted this exception by declination or for inhibitory. The inhibitory one is tried(meant) before the judge who is considered to be competent, asking him(her) to direct I inform the one that is considered not competent, in order that it(he,she) keeps out and sends the cars. The declination will propose before the judge who is considered to be incompetent, asking him(her) to abstain of the knowledge of the business and to send the cars to considered competent. The questions of competition in no case will suspend the principal procedure, but they will have to be solved before pronouncing definitive sentence.

1. Exception of litispendencia (art. 38). This exception is given in reason of which already there exists a hanging litigation in which the same business is proceeded where the parts contenders are the same and which the object of the previous judgment(reason) also identifies with the second judgment(reason). It(he,she) proceeds when a judge knows already about a judgment(reason) in which there is identity between(among) parts(reports), deduced actions(shares) and claimed objects, when the parts dispute with the same character. The one that her(it) objects must indicate precisely the court where the first judgment(reason) is proceeded, and to accompany authorized(expert) copy of the witnesses that has in his(her,your) power, or to request the inspection of the cars. The one that objects the litispendencia for the first judgment(reason) exists before court that does not belong(concern) to the same jurisdiction of appeal, only will be able to credit her with the authorized(expert) or certified copies of the demand(lawsuit) and answer formulated in the previous judgment(reason), which it(he,she) will have to exhibit even before the previous hearing, conciliation and procedural exceptions. In this case declared the litispendencia , will dismiss the second procedure. The effect that is tried to achieve by this exception is definitive, so, it is a question that concludes an undue new judgment(reason) and that one is to the results of the first one.

1. Exception of conexidad of the reason (art. 39 and 40). He(she) is between(among) the delays and also those of previous and special pronouncement. This exception takes as an object the reference of the cars in which this one is opposed, to the court that he(she) prepared(anticipated), knowing first about the connected reason in order that both judgments(reasons) are accumulated and are proceeded as one, they deciding about an alone judgment. It(he,she) exists conexidad of reasons when it(he,she) has: persons' identity and actions(shares), though the things are different; persons' identity and things though the actions(shares) are diverse; actions(shares) that come from the same reason, though the persons and the things are diverse; identity of actions(shares) and of things, though the persons are different. The one that objects the conexidad must indicate precisely the court where the connected judgment(reason) is proceeded, accompanying authorized(expert) copy of the witnesses that has in his(her,your) power or requesting the inspection of the connected cars. The effect of the exception is the accumulation of the cars of the second process to those of the first judgment(reason). It is a question of different judgments(reasons) but the actions(shares) come from the same reason.

1. Exception of lack(mistake) of personality of the actor or of the defendant (art. 47). The juzgador is expressly authorized to examine of trade(office) the personality of the parts. The interested party will be able to correct any deficiency(fault) in the matter up to the hearing of the article 272-A. Against the car in which the Judge does not know the personality refusing to give course(year) to the demand(lawsuit) the resource of complaint will proceed.

1. Exception of lack(mistake) of capacity (art. 47). The part actora has to be a legal person with procedural capacity since the code establishes that everything the one that, in conformity with the law, is in the full exercise(fiscal year) of his(her,your) civil laws can appear in judgment(reason). If he(she) lacks the above mentioned capacity, the demand(lawsuit) will not have to be admitted for treating itself about a procedural budget but, if the sieve of the juzgador resisted the above mentioned demand(lawsuit), the defendant has the opportunity to contest it on having answered the demand(lawsuit) and when this exception to object. The unable one can appear to judgment(reason) for conduit of his(her,your) representatives.

1. Lack(Mistake) of the fulfillment of the term, or the condition to which this one holds the obligation ( arts . 1938 and 1939 of the C.C ). The lack(mistake) of fulfillment of the term or of the condition to which there is subject the right that uses as base to the tried(meant) action(share) will be a motive of resolution until the definitive sentence is pronounced. The obligation is conditional when his(her,your) existence or resolution depends on a future or uncertain event. The condition is suspensive when on his(her,your) fulfillment the existence of the obligation depends. It is an obligation to term that one for whose(which) fulfillment has distinguished itself a certain day, that is to say, that necessarily it(he,she) has to come. This exception the defendant must make it cost(suit) on having answered the demand(lawsuit)

1. Exception of division ( arts . 1984 and 1985 of the C.C .). It is known that the union exists when there is plurality of debtors or of creditors, treating itself about the same obligation. To one joint debtor cannot demand the totality of the debt since his(her,your) debit is joint with other debtors and only it is possible to demand from every debtor juridically the part that corresponds(fits) to him(her) to pay. If one claims the totality it will be required the division of what proclaims itself him and the exception will be of division. Therefore, they will interpose this exception, the debtors united from which a major portion is demanded of that one to which they are obliged.

1. Exception of order or of excusión (art. 2814 to 2186, 2822 and 2824 of the C.C ). The excusión is a benefit that is granted to the guarantor since this one cannot be compelled to pay the creditor, without before the debtor is re-been convenient(re-agreed) and become the excusión of his(her,your) goods. The excusión consists of applying the whole free value of the goods of the debtor to the payment of the obligation, which will remain extinguished or come down to the part that has not been covered. The excusión does not take place when the guarantor resigned expressly her, in the cases of contest or of insolvency proved(tried) the debtor, when the debtor cannot be judicially a defendant inside the territory of the Republic, when the business in order that the bail(deposit) lent is own(proper) of the guarantor and, when the whereabouts of the debtor are ignored, providing that called this one for edicts, neither appears, nor have goods embargables in the place where the obligation should be fulfilled.

1. Exception of the inadmissibility of the route. When one declares this exception, his(her,your) effect will be of continuing the procedure for the step of the judgment(reason) in the route that is considered to be proceeding declaring the validity of them operated, without prejudice of the obligation of the judge about regularizing the procedure.

1. Exception of thing judged (art. 92). This one a typical procedural exception that has to examine before the exceptions that go to the substantive law invoked by the part actora . In this exception only it(he,she) will examine if already the problem was analyzed in previous judgment(reason) in the one that pronounced sentence to himself(itself). The defendant must make it cost(suit) on having answered the demand(lawsuit) and it(he,she) will not suspend the procedure.

D. Exceptions that derive from the Civil Code for the Federal District

All these exceptions that they find in the Civil Code, belong(concern) to the kind(genre) of urgent, understood these as those that kill the action(share) exercised in opposition to the defendant. The word comes from the word to die, in consequence, the above mentioned exceptions have as object destroy or eliminate the pretensions of the actor.

1. Exceptions of payment ( arts . 2062 2096). The fulfillment of the obligations extinguishes these. Payment or fulfillment is the delivery of the thing or derivative quantity or the service that will have been promised. All the modalities and characteristics of payment will have to express on the exception having be made cost(be worth). It(he,she) would be insufficient that was expressing that it(he,she) is there being payment and there were not mentioned the circumstances in which the payment was realized, as well as if the documents were not attached comprobatorios of this payment. The Civil Code regulates diverse situations that they can manage to present in relation with the payment and it(he,she) will have to invoke the disposition(regulation) that, especially, refers to the modalities and circumstances in which it has been fulfilled by the defendant by the obligation that proclaims itself him.

1. Exception of compensation (art. 2185 to 2187, 2190 and 2191). The compensation takes place when two persons assemble(bring together) the quality of debtors and creditors reciprocally and for his(her,your) own(proper) right. The compensation produces the effect of extinguishing for department of law both obligations, up to the quantity that the minor imports. Therefore, if the actor is also a debtor of the defendant, this one will interpose the exception of compensation, which effect will be to extinguish whole or partially his(her,your) debt as it is the amount of what the actor owes to him(her).

1. Exception of confusion of rights (art. 2206). This exception operates when, for some circumstance, the defendant has acquired the rights of the actor. That is to say, there is extinction of obligation for confusion, when the qualities of creditor and debtor meet in the same person.

1. Exception of debt reference ( arts . 2209 and 2210). It is a form of extinction of the obligations that consists of that anyone can resign his(her,your) right and to send, of everything or partly, the presentations that are owed to him(her), except in those cases in which the law prohibits it. The condonation of the principal debt extinguishes the incidental obligations, but of these it(he,she) makes the first one lasting.

1. Exception of novation ( arts . 2213 to 2215 and 2220). This exception is invoked to indicate that there has become extinct(gone out) the right that one tries to claim. The novation appears when the parts been interested in a contract have altered it substantially establishing a new obligation that substitutes for the former one. The novation extinguishes the principal obligation and the incidental obligations. To the result of the novation she is considered to be a new contract and is subject to the general dispositions(regulations) that govern the contracts. It is important to annotate that the novation is never presumed, has to consist expressly.

1. Exception of negative prescription ( arts . 1158 1164). The beginning(principle) of juridical safety demands that, the lack(mistake) of fulfillment of an obligation, united to the lack(mistake) of exigency of this fulfillment, gives place to the extinction of the obligations. Therefore, if there has been left the term(end) passed he(she) bequeaths in order that the action(share) goes out or in order that there goes out the right that uses him(her) as foundation, this exception can be opposed. The negative prescription will happen for only course of the time fixed by the law, therefore, if there is no disposition(regulation) that establishes that it is a question of presentations imprescriptibles , the general rule is that it(he,she) expires in ten years. It is important to remember that the prescription can be interrupted by the presentation of the demand(lawsuit).

1. Exception of conditions resolutorias (art. 1940). Unlike that the existence of a suspensive condition that has not been realized, constitutes it is a dilatory exception; the presence of a condition resolutoria that has been realized and that has extinguished the obligation that one claims in judgment(reason), constitutes an urgent exception. The condition is resolutoria fulfilled(polite) when it(he,she) solves the obligation, turning the things to the condition(state) that they had, as if this obligation will not have existed.

1. Exception of term(end) resolutorio . It can happen that, inside the hypothesis of free contracting, in which the parts put under an obligation in the form and terms(ends) that wanted to do it, it is agreed that the obligation will become extinct(go out) for the course of a time foreseen in the own(proper) contract. In this supposition one is before a term(end) resolutorio that will give place to this urgent exception. If the term(end) is suspensive the exception will be dilatory.

1. Exception of transfer of obligations ( arts . 2051 and 2052). In this urgent exception I demand it(he,she) argues(indicates) that it(he,she) has stopped having the debtor's category that the actor attributes to him(her). The debtor's substitution needs the express or tacit assent of the creditor. The dangerous thing for the actor is that, this tacit assent exists. There is presumed that the creditor consents in the debtor's substitution when it is allowed that the substituto should execute acts that the debtor had to execute, as payment of incomes, partial or periodic payments, providing that I do it in own(proper) name and not at the expense of the primitive(original) debtor.

1. Exception of retention of the thing sold ( arts . 2283, fraction I, 2286 and 2287) It is an obligation of the seller to deliver the things sold but, if the price has not been paid to him(her) can retain it, except if term has been granted to him(her) for the payment. It(he) is not also obliged to the delivery, though it(he,she) has known a term, if after the sale there is discovered that the buyer is situated in condition(state) of insolvency, of luck that the seller traverses imminent risk of losing the price, unless the buyer gives him(her) bail(deposit) of paying to the been convenient(agreed) term.

1. Exception of nonexistence ( arts . 1794 and 2224). If the actor claims to the defendant the fulfillment of a supposed(alleged) obligation that comes from a non-existent act, one will make cost(be worth) the urgent exception of insistence. The juridical non-existent act for the lack(mistake) of assent or of object that could be a matter of him(it) will not produce legal any effect. It(he,she) is not capable of costing(suiting) either for confirmation, or for prescription, his(her,your) nonexistence can be invoked by every interested party. The elements of existence will be the assent and the object that could be a matter of the contract.

1. Exception of nullity ( arts . 1795, 2226 and 2229). If the obligation derives from a juridical act, it is possible to claim the nullity of this act, for route of the exception. The contract can be invalidated by legal disability of the parts or of one of them, by vices in the assent, for which his(her,your) object, or his(her,your) motive or end(purpose), is illicit, because the assent has not demonstrated in a way that the law establishes. The nullity can make cost(be worth) him(you,them) for route of exception habida account(bill) of which she(it) can take advantage every interested party, when it is an absolute nullity.

1. Exception of transaction (art. 2944 and 2953). If the transaction is a contract for which the parts, reciprocal grants being done, they finish a controversy or prepare the future one, it is logical that, if the future controversy arises, the defendant can invoke this exception that is equivalent to the exception of judged reason. The transaction will have, I concern of the parts, the same efficiency and authority that the judged thing; but the nullity or the rescission will be able to be asked of that one in the cases authorized by the law.

BIBLIOGRAPHICAL CARDS

1. ARELLANO GARCÍA , Carlos. Civil procedural law, 4 ª ed., Mexico, Porrúa , 1997.

1. ARELLANO GARCÍA , Carlos. Forensic civil and familiar(family) practice, 21 ª ed., Mexico, Porrúa , 1999.

1. ARELLANO GARCÍA , Carlos. General theory of the process, 6 ª ed., Mexico, Porrúa , 1997.

1. Juridical Mexican dictionary, 4 vols ., 9 ª ed., UNAM / Porrúa , Mexico, 1996.

1. GÓMEZ LARA , Cipriano. General theory of the process, 9 ª ed., Mexico, Harla , 1996. (Cabbage. Juridical University texts).

1. OVALLE FAVELA , Jose. Civil procedural law, 7 ª ed., Mexico, Harla , 1995. (Cabbage. Juridical University texts).

1. PINA, Rafael of. Dictionary of right, Mexico, Porrúa , 1965.