The Procedural World pays tribute to MasterAdolfoAlvarado Velloso

PRINCIPLEOF
CONGRUENCE
By: Jorge Appes Pelliza
Lawyer
Member of the Graduate Faculty
Update on Civil Procedural Law - Faculty of Law of the
National University of Cuyo (May to October 2007)
Professor of Civil Procedural Law - Special Part - Champagnat University.

The principle of incongruence highlighted by Law 16 of Part III is of ancient origin.

data, (dice: 'the judgment given by the judge regarding something that was not demanded before him should not be valid')
but its scientific systematization as well as its establishment in the codes of procedures is
recent data.
235
The regulation that set directions in the matter was the Civil Procedure Law
Spanish law of 1881 that establishes in its article 359 '... the sentences must be clear and precise and
consistent with the demands and with the other claims made in a timely manner in the
lawsuit.

It is well known - teaches Guasp - that congruence consists of that requirement that compels
establish a total correlation between the two main defining elements of the scheme
litigious: the claim and the decision.-(Guasp, Civil Procedural Law, Madrid, ed. of the Institute
of Political Studies, volume I, 1956.

It has been emphasized that congruence ultimately manifests itself in a comparison between
two vertices: the claims of the parties and the resolution of the judge.

Rosember and Couture point out that the ruling is the response to the demand and the issues
introduced into the debate by the defendant.

Ricer clarifies: "Congruence only requires correlation between the decision and the
The terms in which the litigation was timely presented include the following aspects:

a) Resolution of all claims timely submitted.

b) Resolution only of the claims exercised, that is, prohibited to resolve.
unexercised claims.
c) Application of these rules to the issues raised in the debate by the defendant,
that is, the resolution of all the issues raised by it and nothing more than them.

(Ricer, Abraham, "Congruence in the Civil Process", Journal of Procedural Studies, No.
5, p. 15/26

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There is evidently a connection between congruence and the dispositive principle, it is

circumstances, the full lordship of the parties over the process, a dominion that would be lost if allowed to
jurisdictional body that will weigh facts not alleged by the litigants or grant things not
claimed.

FUNDAMENTALS OF INCONGRUENCE
There is no agreement among the scholars regarding the basis of the principle of
congruence.

The great Spanish treatise writer Aragoneses argues that the foundation would be that of a
reliability "impartial".- Devis Echandia disagrees with the aforementioned position mane-
celebrating that the impartiality of the official ensures that their judgment is not influenced by any
feeling that is not that of the strict application of the law, which can occur even if the Judge does not
I went through some of the vices that produce incongruity.

Another theory seeks to establish congruence in the need to prevent an excess of

power on the part of the civil court. - For our part, we believe that the best foundation for the
congruence is the dispositive principle and that of the constitutional guarantee of defense in trial
of people and of rights.- Serra Domínguez states that consistency rests on
all the principles that inform the process, but acknowledges that those that stand out the most in this
236 Matter in the civil process are the principles of disposition and contradiction. In the same sense
Aragoneses acknowledges the intimate connection between congruence and the dispositive principle.
understood this last one as the complete domain that the parties have over their right
tancial and procedural rights in the sense that they are free to exercise them or not.

The jurisprudential analysis on the topic of rulings by the Supreme Court of Justice of the
Nation demonstrates that the requirement of Congruence has firm and clear constitutional support
especially in the guarantee of defense in court for individuals and their rights.

TYPES OF INCONGRUENCE
We understand that the incongruity arises in relation to the 3 essential elements of the proce-
so:

1. Regarding the parties

2. Regarding the claimed matter and
3. Regarding the facts of the case.

Regarding the parts, it may be excessive (when a person has been sued
for Damages and losses and the sentence condemns the defendant and another person to pay it);
by Default (when two or more people are sued and the ruling omits a pronouncement
regarding the origin of the claim of one of them); and mixed (when the sentence
prospers against a person other than the defendant.

The incongruity regarding the claimed matter can also be due to excess (when
the delivery of a thing is demanded and the judgment condemns to the delivery of a thing and to the delivery
of a sum of money; or it is simply given when the decision condemns to pay a sum
greater than the claimed); by default (when two or more things are claimed and the sentence

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 The Procedural World pays tribute to MasterAdolfoAlvarado Velloso

omits a ruling on one of them or when it condemns to pay a lesser amount than
the one admitted by the defendant.

The factual incongruity arises from excess when the ruling addresses a question
not raised and by default when the decision fails to resolve an issue that I raised
opportunely and mixed when a different issue is resolved.

The case law agrees that the judgment in civil proceedings must
to limit itself to the judgment of the issues that have been the subject of the litigation between the parties and these
they cannot modify the situation that emerges from the blockage of the litigation. - In conclusion, we affirm
that judicial decisions must adhere to the terms of the litigation.

THE CONGENCE AND THE PRINCIPLE OF JURIS NOVIS CURIA

At this stage of the presentation, it is necessary to ask how the principle plays into this matter.
"iuria novis curia" we affirm that this power of the judicial body to apply the law
and legally qualify the factual situation of the case must be exercised based on the facts of
the cause timely introduced by the parties in dispute.

10: ARBITRARY SENTENCE - PRINCIPLE OF CONGRUENCE - THREE FOR-

MORE THAN RAPE - JURISPRUDENTIAL ANALYSIS 237
Regarding incongruity as a type of arbitrariness, we must take as a point
To begin with, the principle of congruence requires that there is correlativity between the
sought in the proceedings and what was resolved in the ruling, being three ways to violate it: a)
ultra petitum ruling (art. 77 C.P.L.) that grants one party more than what was demanded by
she;b) decision on the requested figure that does not address the claims that must be resolved;
c) ruling extra petitum that decides issues not submitted to resolution
from the judge.- (Case No. 56,893 - Portillo Héctor S. and others vs. Lledo Raúl Vicente / Héctor
S. Portillo et al. - 12/15/1995 - S.C.J.

13: UNCONSTITUTIONALITYAPPEALINCONGRUENCE - CLASSES

Incongruence can be quantitative: giving more than what the actor intended,
less than what is admitted by the defendant or something different from what was claimed; or qualitative:
to rule on facts not alleged by the parties, or on exceptions not opposed
you, an omission to decide any of the issues raised in a timely manner.- (Files
No. 56.021 - Petroquímica Cuyo S.A.I.C. in J: Appendino Osvaldo / Petrochemical
Cuyo S.A.I.C. - 03/16/1995 - S.C.J.)

FLEXIBILIZATION OF THE PRINCIPLE

Congruence ultimately constitutes a logical premise of a judgment that respects the

parameters outlined throughout this work and where principles so dear to
procedural law, such as the device, the contradictory, and the legitimate defense in trial.- By
Thus, wherever there is talk of the 'flexibilization of congruence,' particular attention must be paid.
Be careful, as this expression is sometimes used to justify a decision based on discretion.
from the Judge.

It must be concluded that 'congruence', more than a procedural principle, constitutes a

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 MAN'S FAITH IN HIMSELF OR THE FIGHT FOR FREEDOM THROUGH THE PROCESS

logical rule or budget of the sentence, whose study falls within the broader framework of
analysis of the judicial decision, its formation process and its legitimacy.

PREVENTIVE MANDATE AND THE PRINCIPLE OF CONGRUENCE

A manifestation that aligns with the ideas of flexibilization of the principle of congruence.
it is the so-called Preventive Mandate.- This figure, systematized by Peyrano, in some of its
pronouncements, marks a plus on what the parties have requested. -That is to say, it has not
respected the congruence conceived as a fitting or perfect assembly between the intention or
position, and ruling and nothing more, but something consistent has been added in a manifestation
of jurisdictional power, which aims to prevent situations like those that have been resolved.
Therefore, we believe that the preventive mandate goes against the principle of consistency,
as long as it has not been requested by either of the parties in dispute.- In this case, it
I could replace the intuitive spirit, which informs the preventive mandate, with a communication that the
The judge should carry out the responsibility of the oversight body corresponding to the location or
what caused the damage.

THE INCONGRUITY IN THE HEIGHT

The general rules of congruence are projected in the second instance, thus we see that
238 all procedural regulations establish rules that:

a) they see the appellate court ruling on chapters, points, or issues that do not
were timely submitted for a decision in the first instance.-
b) in the second instance, consistency requires a correspondence between the decision and the
what is the subject of the appeal.- The act with which the appellant grounds their appeal (report
memorial of grievances) determines the issues submitted for decision of the
Court of Appeal.

In the second instance, the following cases of incongruity may occur:

1) When the appellate court decides on issues that have been consented to.- If the
Judge resolves unchallenged chapters. - Or when the appellate court modifies the
judgment to the detriment of the appellant, thus violating the principle that prohibits reforming the
decision to the detriment of the appellant, it would be pronounced ultra petita.

2) When it does not decide issues that are indeed subjects of appeals, when the court of
The court omits to decide on matters that are subject to appeals, it would declare.
small.

Calamandrei: "Similarly, in the appeal, the new examination by the second degree Judge
it is exercised only when the parts provoke it with their burden in appeal, just as
In first grade, the Judge's perspective is limited, so to speak, by the peephole of the system.
device and is not in a position to see other than what the parties place within the field
visual contemplated from that narrow opening.

This involves the same correspondence that must mediate between all aspects of
The litigation and the resolution of the lower court must exist between the complaints and their responses submitted.
before the superior and what was resolved by elad-quem.

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And thus it has been received jurisprudentially (read the ruling).

5: APPEAL RESOURCE VARIOUS ISSUES IN THE APPEAL.-The court

"Ad Quem" can only issue a valid pronouncement regarding the issues involved.
in the plaintiff's claim and the defendants' oppositions, put forward before Judge 'A
Once the litigation is underway – with a complaint and an answer – the parties cannot modify
The original procedural relationship and its limits must be confined to the jurisdictional decision. The principles
of equality, bilateralism, and procedural balance, based on the guarantee of the process and in the
the inviolability of the defense in trial is the basis, in turn, of the principle of congruence,
intimately related to the 'litis contestatio'. - This constitutes the insurmountable framework.
within which the production of evidence must proceed, its evaluation, and as mentioned,
adapt to the ruling that is issued, under penalty of incurring extra or ultra petito of
to issue an incongruous or arbitrary ruling, by resolving issues not debated.-(Case
No. 23.139 - O.M.G. S.A. / Walter O. García and others - 4th Civil Chamber - 31/07/1997.

CONCLUSIONS:
Congruence was born as a technical principle, aimed at curbing advances in
State, embodied in the person of the judge, and thus avoid the rule of JUDGES.
Any tyranny, if it is human, is unacceptable. - Throughout the reading and reflection on how much
there is written about this principle, we conclude that it is found in it
irrenounceable principles of Civil Procedural Law such as the Adversarial System 239
And that of the Justifiable Defense in trial. With what has been said previously, it should be enough for us to
we become staunch defenders of respect for this principle in all resolutions
Judicial.- We do not accept in any way the flexibilization of it, as it would be to open up
the door to the possibility of arbitrariness that conspire against Democracy, the principle
Republican Government and Social Peace.- Therefore, this work aims to pursue
that colleagues, both those who practice the profession of lawyer and litigants, become aware
the importance of this topic and become its brave defenders. And the judges, who
they are also colleagues, but who have the function of judging, do so respecting this principle,
which tends to the conservation of Justice and therefore, to Social Peace. - The judge must be subject
to the law, and therefore, to the principle of congruence that we are analyzing. It is enough to read Piero
Calamandrei in 'The Praise of Judges' Page 198, '... moreover the judge, Montesquieu said, neither
He doesn't even need eyes to see the law, since he is an inanimate instrument, a kind of
spokesperson through which the law speaks for itself: 'the mouth of the law'.- For now, although the judge
while judging, they will forget their opinions and personal condition, they will always have the duty,
to faithfully apply the law, to interpret it; but to interpret it means to go back to the
"ratio" from where it has been born, that is, in substance, to the political inspiration that circulates in it and the
it makes it socially relevant. This suggests that there is some margin in every legal interpretation.
of political choice.
But it is difficult, in reality, for the judge when interpreting the law (which means to rethink in
she and make her revive in herself), I managed to separate from myself to the point that in my judgment they do not enter, even without
to realize, their own political opinions, their religious faith, their economic condition, their social class,
their regional or family traditions and even their social prejudices and phobias ...".- Piero Calamandrei
In 'The Praise of Judges', p. 199.- The quote we have made shows us, even with
greater clarity, that one cannot be subjected to pure judicial interpretation. This
interpretation must be subject to the principle of legality. And consequently, to those who
they inform the classic procedural structure, especially that of Contradiction and that of Legitimacy
Defense in Trial. Therefore, this principle cannot be flexible or have exceptions, it is without that it
they cause immeasurable damage to legal security and equality before the law.
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