The Supreme Court issued judgment on March 24 2000 (RJ 2486) on the matter of a counterclaim filed against a non-litigant party.
The purchaser of a property in Malaga filed a lawsuit against the vendor, a real estate development company called Marbella Sierra Blanca SA, seeking compensation for certain credits and debts existing between the parties.
The defendant filed its defence rejecting the reasons argued by the plaintiff and entering a counterclaim against a third party called Marbella Sierra Blanca Gestión SA, claiming the payment of a number of debts.
The Supreme Court confirmed the judgment issued by the judge of first instance and by the Court of Appeal, stating that in a civil action the claimant identifies the parties to the process by filing its lawsuit against them. The defendant is entitled to file its defence containing every counterclaim that he may have against the plaintiff.
Further to Sections 542 and 668 of the Spanish Civil Procedure Act, although there is no doubt that the defendant may issue a fresh lawsuit against a non-litigating party, the defendant does not enjoy the right to file a counterclaim against an individual or company which has not already been mentioned by the claimant.
The Supreme Court backed up its decision by stating that to rule otherwise would leave the procedural rules open to the litigating parties, which is against public order.
The New Civil Procedure Act, which came into force on January 8 2001, sets out a different rule. Section 407 now allows the defendant to counterclaim against a third party that may have an interest in the controversy.
For further information on this topic please contact Jorge Hernández or Jorge Capell by telephone (+34 9152 47100) or by fax (+34 9152 47153) or by e-mail ([email protected] or [email protected]).
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