1

CIVIL PROCEDURE CODE

LAW N.19 OF THE JULY 1974
The president of the supreme revolutionary council having seeing the first and the
second charter of the revolution; considered of the approval of the supreme
revolutionary council and the council of the secretaries of state; on proposals of the
secretary of state to the justice and religious affairs; promulgate the following law:

ARTICLE 1
It is approved the civil procedure code attached to the present law. The norms of
said code will regulate all the civil judgements and, as for applicable, also the
judgements relative to the personal institute (family law).
ARTICLE 2
A copy of the text in the Italian language signed from the president of the S.R.C.
and contra signed from the state secretary to the justice and religious affairs will
serve as original and will be deposited at the office of the general advocate of the
state.
ARTICLE 3
The Somali procedure code will be enforced on 21 October 19974. From the same
date will cease to have efficacy in the Somali democratic republic territory the
fallowing dispositions:
- Italian civil procedure code;
- Ordinance N.5 of the 2-2-1956;
- Decree N.28 of the 24-2-1956;
- Decree N.29 of the 24-2-1956;
- Decree N.30 of the 24-2-1956;
- The procedural dispositions in the H.D. 12-6-1962. N.3;
- Indian code of civic procedure 1960;
- civil procedure ordinance;
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- Indian evidence act 1872;

- Indian evidence act ordinance;
-Execution of money decree ordinance;
- All other laws incompatible with the present code. Mogadishu, 27 July 1974.
The president of the supreme revolutionary council Jalle Gen.div. Mohamed Siad
Barre.
The secretary of state to the justice and religious affairs, Jalle Dr, Abdisalam shekh
Hussen.
ARTICLE 4
JURISDICTION IN RESPECT TO THE FORIEGNER
The foreigner can be convened before the Somali judicate organs;
1) If is resident domiciled in Somalia or has a representant that is authorized to
stay in process;
2) If the request concern goods existing in Somalia or heritages of Somali
citizen, open in Somalia or otherwise obligations arised or to execute in
Somalia;
3) If the request is connected with other pending before the Somali judge;
4) If, in the reciprocal case, the judge of the state to whom the foreigner
belongs, can know of the requests proposed against a Somali citizen.

ARTICLE. 5
DETERMINANT MOMENT OF THE JURIDICTION
The jurisdiction and the competence are determined on basis to the fact state
existent to the moment of the proposition of the request and not relevance respect
to them the subsequent changes of that satate.
ARTICLE. 6
INDEROGATION OF THE CONVENTIONAL COMPETENCE
The competence cannot be derogated on agreement of the parts, except that the
cases established from the law.
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SECTION II
COMPETENCE PER MATTER, VALUE AND TERRITORY
ARTICLE.7
COMPETENCE OF THE DISRTICT TRIBUNALS
The district tribunal is competent for all the controversy of which value not exceed
sh.s.3,000 and for the questions relative to the personal institute (family law),
without limit of value.
The territorial competence of the district tribunal in delimitated from the
circumscription of the district.
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CIVIL PROCEDURE CODE

FIRST BOOK
GENERAL DISPOSION
TITLE I
JUDICIARY ORGANS
CHAPTER 1
THE JUDGE
SECTION I
ARTICLE.1
JURISDICTION OF ORDINARY JUDGES1
The civil jurisdiction, except special disposition of law, is exercised from ordinary
judicate organs according the norms of the present code.
ARTICLE.2
CONVENTIONAL UNDEROGABLE THE SOMALI JURISDICTION
The Somali jurisdiction cannot be derogated neither in favor of a foreign
jurisdiction nor arbitrates that pronounce to the abroad, except that concerns of a
case related to obligations between foreigners or between a foreigner and a citizen
not residing nor domiciled in Somalia. (19c.c)
ARTICLE.3
PENDING CONTRSVERSY BEFORE A FOREIGN JUDGE
The Somali jurisdiction not exclude from the pendency before a foreign judge of
the same case or other with this connected. (19,24,25,313, n.5)
ARTICLE.4
JURISDICTON IN RESPECT OF FOREIGNER

1
On jurisdictional activity; article.1 of the judiciary ordinance, 1974 on
jurisdictional defect, see article.25 c.p.c
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The foreigner can be defendant before the Somali juridicant organ;

a) If the resident or domiciled (40 c.c) in Somalia or has a representant who is
authorized to stay in process;
b) If the request concern goods existing in Somalia or hereditary successions
of Somali citizen, opened in Somalia or obligations arisen or to execute it in
Somalia (88,159,160,175,176,177,178-184,,185-194,195 c.c);
c) If the request is connected with other pending before a Somali judge;
d) If, in the reciprocal case, the judge of the state to whom the foreigner
belongs, can know of the requests proposed against a Somali citizen;
ARTICLE.5
DETERMINANT MOMENT OF JURISDICTION
The jurisdiction (22) and the competence (6-21) are determined on basis to the
state of fact existent at the moment of preposition of the request and not have
relevance respect to them the subsequent changes of that state (7 judiciary act,
1974).
ARTICLE.6
CONVENTIONAL UNDEROGABLITY OF THE COMPETENCE
The competence cannot be derogated on parts accord, except that in the cases
established from the law (230).

SECTION II
COMPETENCE PER MATTER, VALUE AND TERRITORY
ARTICLE.7
COMPETENCE OF THE DISTRICT TRIBUNAL
The district tribunal is competent for all the controversy of which value not exceed
sh.so.3,000 2 and for all the questions related to the personal institute (family law),
without limit of value3.

2
See art.9 last comma, jud.org, of 22 September, 1974 ‘the labor section of regional court has competence for the
cases of labor of whatever values ‘
3
See law n.23 of January, 1975- law on personal institute- family law.
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The territorial competence of the district is delimitated from the circumscription of

the district (6,8 judiciary organization, 1974).
ARTICLE.8
COMPETENCE OF REGIONAL COURT
The regional court has competence for all controversy of which value is greater
than sh.so.3,000 or are of undetermined value. It has also competence for the labor
cases, for those in which is part the state and for all the cases for which the
competence is to it attributed from special law.
The territorial competence of regional court is delimitated from the circumscription
of the region (6,9 judiciary organization act,1974).
ARTICLE.9
COMPETENCE OF THE APPEAL COURT
The appeal court is competent to know of all the appeal against the sentences of the
district, and the regional (230-245) to it is also attributed the resolution of conflicts
of jurisdiction and competence between district tribunal of the region and between
these and regional of the same.
The appeal court has also exclusive competence in matter of deliberation of foreign
sentences 312,3164
The territorial competence of the appeal court is delimitated from the
circumscription of the region (10-12 jud.org, 1974).
ARTICLE.10
COMPETENCE OF THE SUPREME COURT
The supreme court has jurisdiction on all the republic and competence (13
judiciary act, 1974):
1) For all the petitions against the sentences of second instance and of first
grade not appealable pronounced from judicant organs of the republic;
2) For all the administrative cases 5;.

312 4 See art. c.p.c deliberation of foreign sentence, and says: ‘who wants to prevail in the Somali Democratic
Republic a foreign sentence should propose request through citation before to the appeal court, in which the
sentence should have execution’.
5
For the competence of the administrative cases, see the law of which to the preceding note.
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3) For the revocation proceedings (266) of the sentences issued from the same
supreme court;
4) For all the matters attributed from the law to its competence 6;
5) For the competence regulation and jurisdiction between ordinary judicant
organs and between extraordinary jurisdictional organs and specials, (266) to
the exception to what is foreseen to the art.9.

ARTICLE 11
DETERMINATION OF THE VALUE
The value of the case to the end of the competence is determined and basis of the
introductive request of the process.

SECTION III
COMPETENCE PER TERRITORY
ARTICLE.12
DETERMINATION OF THE TERRITORIAL COMPETENCE OF THE
JUDGE
Except otherwise different dispositions of law, the territorial competence of the
judge is determined from the place in which the defendant has the residence or
domicile (40 cc). If the defendant has not residence nor domicile in Somalia or if
these are unknown is competent the judge of the place in which resides the
plaintiff.
ARTICLE.13
Competence for the cases related to real rights (681, 698, 707, 718, 745, 792, 803,
806, 821, 855 c.c) or possession on immobile is competent the judge of the place
where is situated the immobile (757).
ARTICLE.14
COMPETENCE FOR THE CASES RELATED TO THE RIGHT OF
OBLIGATION

6
See art.137, comma 2, labour code.
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For the cases related to the rights of obligations (88,225 c.c) the competence can be
attributed discretionally to the judge of the place in which is arisen or should be
executed the obligation.
ARTICLE.15
COMPETENCE FOR THE CASES RELATED TO THE HERIDETARY
QUESTIONS
For the cases related to the hereditary questions is competent the judge of the place
in which is opened the succession (724,725 c.c).
ARTICLE.16
Competence for the cases related to the forced executions on mobile or immobile is
competent the judge of the place in which the things are situated (343, 346, 360,
390). The same judge is competent for the cases of apposition to the execution
(432, 636).
ARTICLE.17
DEROGABILITY OF THE TERRITORIAL COMPETENCE FOR PART
ACCORD
The competence per territory can be derogated for expressed accord of the parts,
except that the derogatory not being incompatible with mandatory disposition of
law (293,294,346,427,429).
ARTICLE 18
FORUM OF ELECTED DOMICILE
Who has elected domicile to the norm of the articles 40 and subsequent civil codes,
can be defendant before to the judge of the elected domicile.

SECTION IV
MODIFICATION OF THE COMPETENCE
ARTICLE 19
ACCESORY CASES
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The accessory cases can be proposed before the judge territorially competent for
the principal request independently from the reason that per matter or value could
replace that competence to another judge.
ARTICLE.20
SUBJECTIVE ACCUMULATION
The cases connected against more persons (12) that should be proposed before
different judges, can be proposed before the judge (70, 191) of the place of
residence or domicile (40 c.c) of one of any of them.
ARTICLE.21
RECONVENTIONAL CASES
The competent judge for the principal case is competent also for the reconvention
request.

SECTION V
DEFECT OF JURISDICTION OR COMPETENCE
ARTICLE.22
DEFECT OF JURISDICTION
The defect of jurisdiction is raised also by the office in any stage and grade of the
process (26, 246 n.1).
ARTICLE.23
INCOMPETENCE
The incompetence per matter is raised by office in any stage and grade of the
proceeding.
The incompetence per value or territory can be raised only in the first grade (26), if
the parts comply with the exception of incompetence and be indicated the judge
that should be competent, the judge addressed can return the case to the competent
judge ordering that it should be resumed in the maximum term of three months.
If the resumption doesn’t take place within that term the case will be canceled from
the register.
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ARTICLE. 24
LITISPENDENCE
If a same case is proposed before a different judge the subsequent addressed
declares with sentence the litispendence and cancels from the register (191) the
case continues before the judge previously addressed.
ARTICLE. 25
CONNECTION
If are proposed before different judges more cases that can be decided in one
process the judge order that they be proceeded Infront of the competent judge for
the principal case or Infront of the judge previously addressed (191).

SECTION VI
JURISDICTION AND COMPETENCE REGULATION
ARTICLE. 26
JURISDICTION AND COMPETENCE REGULATION
Till the case not been decided in the first grade each of the parts can request the
resolution of the questions of jurisdiction (5, 22) and of the competent (7-18).
The request will be proposed to the supreme court or to the appeal court in view of
the article.9, in the case of conflict between district tribunal of the same region and
between these and regional court.
The decisions of the appeal court in matter of conflicts of jurisdiction and
competence are impugnable Infront of the supreme court, except the cases of
conflict of territorial competence, for which the decision of the appeal court is
definitive.
ARTICLE. 27
CONFLICT OF COMPETENCE RAISED BY THE JUDGE
The regulation of jurisdiction or of competence can be also requested from the
judge whom the case arrived at as sentence of another judge who determined the
jurisdiction or the competence.
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ARTICLE. 28
SUSPENSION OF THE CASE DURING THE REGULATION OF
JURISDICTION AND COMPETENCE
The regulation of jurisdiction or competence (26) the case can be suspended, but
the judge can order the execution of acts that retain urgent.

SECTION VII
ABSTENTION, RECUSATION AND RESPONSIBILITY OF THE JUDGE
ARTICLE. 29
ABSTENTION
The judge is compelled to abstain:
1) If he has personal interest in the case (68);
2) If he himself or the wife and his relatives are linked from parental tie (34, 37
c.c) up to 4th grade with one of the parts or the Defensor;
3) If he himself or his parents are in great hostility or rapport of debt or credit
with one of the parts or one of the Defensor;
4) If he has given advice or expressed judgement in merit to the case or has
known of it for reasons of his duties in other grade of the process;
5) If he is tutor or employer of work or administrator of one of the parts, in any
other case in which there are serious reasons to abstain.

ARTICLE. 30
RECUSATION OF THE JUDGE
In the cases foreseen from the article that precede each of the parts can request the
recusation of the judge with written petition to the head of the office (12 judiciary
act 1974)) explaining the reasons and indicating eventually the means of prove.
The petition of recusation suspends the process.
ARTICLE. 31
COMPETENT JUDGE FOR THE RECUSATION
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If the head of the office to whom is addressed cannot decide or the petition is
directed against him, the petition will be transmitted to the organ immediately
superior.
ARTICLE. 32
PROVISION OF RECUSATION
If the petition is accepted with the provision of receiving will be designated also
the judge that replace that recused (12 judiciary act, 1974).
ARTICLE. 33
CIVIL RESPONSIBILITY OF THE JUDGE7
The judge is civilly responsible:
1) If in the exercise of his duties is alleged of fraud or bribery;
2) If without just reason refuses, omits or delays acts of his office.

ARTICLE. 34
AUTHORIZATION OF THE SECRETARY OF STATE
The request of declaration of responsibility of the judge can be proposed only prior
authorization of the secretary of state to the justice and religious affairs.
CHAPTER 2
CLERK AND JUDICIARY OFFICER
ARTICLE. 35
ACTIVITY OF THE CLERK
The clerk documents in written on ways and modality foreseen by the law all the
proper activity of the judiciary organs and of the parts, he assists the judge writing
verbal process of his activity.

7
See art.26, comma 3, judiciary act, 1974: “the magistrates cannot be convened in civil process for acts performed
in the exercise of their duties if not in the case in which is not made responsible of an offence”
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The clerk undersigns the acts signed by the judge (68). He performs also all the
attributions to him expressly conferred by the law (94, 339, 351, 391, 397, 432,
433).
ARTICLE. 36
ACTIVITY OF THE JUDICIARY OFFICER
The judiciary officer assists the judge in the audience, provides the execution of his
order, to the notification of the acts and all the incompetence to him attributed from
the law (361, 365, 367, 423, 425, 426, 428).
ARTICLE. 37
RESPONSIBILITY OF THE CLERK AND OF THE JUDICIARY OFFICER
The clerk and the judiciary officer are civilly responsible (116/2 c.c):
1) If they refuse, omit or delay of performing acts of their office;
2) If they have done a null act with fraud or serious culpa.

CHAPTER 3
TECHNICAL CONSULTANT, CUSTODY AND AUXILIARIES OF THE
JUDGE
ARTICLE. 38
TECHNICAL CONSULTANT
If is necessary the judge can be assisted from one or more consultant (136-141) of
particular technical competence.
ARTICLE. 39
ACTIVITY OF THE TECHNICAL CONSULTANT
The consultant performs the investigation that are requested, expresses the
opinions and provides the judge the elements of the information in the virtue of his
specific competence.
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ARTICLE. 40
DUTY TO ASSUME THE NOMINATION AND RECUSATION OF THE
CONSULTANT
The consultant designated has the duty to render his office (255 p.c) except that
exist right motives of abstention.
The consultant can be recused from the parts for the reasons of which on the
article.29 on the recusation of the consultant decide the judge that has designated.
ARTICLE. 41
The consultant is responsible of the damage that has caused to the parts by fraud or
serious culpa.
Further that to the compensation he can be condemned from the judge that has
designated to the penal pecuniary.
ARTICLE. 42
THE CUSTODIAN
The conservation and administration of goods subjected to distrain (346,) or
sequester (293, 294, 296) is trusted to a custodian nominated from the judge, who
determines also the compensation to him awaiting.
The custodian can be one of the parts or one third.
ARTICLE. 43
SUBSTITUTION OF CUSTODIAN
The custodian can be substituted in any moment from the judge, of office or to part
request.
ARTICLE. 44
RESPONSIBILITY OF CUSTODIAN
The custodian is liable to the compensation of damages provoked if not has
acquitted8 to his duty with the normal diligence (261, 262-285 p.c). He can also be
condemned from the judge to a pecuniary of penalties.

8
Acquitted- to acquit oneself from debt
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ARTICLE. 45
OTHER AUXILIARY
When arises necessity either the clerk and the judiciary officer can assist
themselves from experts, interpreters or other auxiliaries (18/2 judiciary
organization).
The judge can always request the assistance of the police force.

TITLE II
ATTORNEY GENERAL
ARTICLE. 46
CIVIL ACTION OF ATTORNEY GENERAL
The A.G exercises the civil action in the cases established from the law (15,
comma 2/6-c, judiciary act 1974).
ARTICLE. 47
INTERVENTION IN THE CASE OF A.G
The A.G intervene on civil process in the cases foreseen from the law (113, 159/3,
267, 306, 315) and in any other case in which identifies connected with a public
interest.
ARTICLE. 48
COMMUNICATION OF THE PROCEDURAL ACTS TO THE A.G
The judge before whom is proposed one the cases on which to the article that
preceed should give to the A.G communication of the acts because he could
intervene.
ARTICLE. 49
ABSTENTION OF THE A.G
The A.G can abstain himself to participate to the civil cases for one of the motives
of which to the art.29, but he cannot be recused.
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ARTICLE. 50
RESPONSIBILITY OF THE A.G
Is applied to the A.G the dispositions of which to the art.33 on the civil
responsibility of the judge.

TITLE III
CHAPTER I
PARTS AND REPRESENTS
ARTICLE. 51
PROCEDURAL CAPACITY
Can stay in process the persons that have the free exercise that can prevail their
rights (44 c.c).
Those that have not that free exercise cannot stay in process if not assisted or
represented according the norms that regulate their capacity (47 c.c).
The legal persons stay in process of whom represents to norm of law (53/3 c.c).
ARTICLE. 52
SPECIAL CURATOR
If lacking the person whom awaits the representant of the incapable persons (47
c.c) or the legal persons (companies) (53 c.c), the judge, in urgent cases, can
proceed to the nomination of a special curator.
ARTICLE. 53
PROCEDURAL SUBSTITUTION
No one can prevail in process in proper name a right of others.
ARTICLE.54
ADVOCACY
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Before to the tribunals of first and second instance, the parts can stay in process
without the assistance of Defensor. Before the supreme court the assistance of a
Defensor is compulsory.
ARTICLE.55
POWER OF ATTORNEY TO THE LITIGATION
When the part stays in process with the assistance of Defensor this should provided
of power of attorney to the litigation. Except that is not differently and expressly
foreseen in the power of attorney, this has the efficacy for only one grade of the
process and doesn’t give ability to compromise (512 c.c) or reconcile.
ARTICLE.56
POWER OF THE DEFENSORS
The Defensor that stay in process provide of attorney can perform and receive in
the process all the acts that are not from the law expressly reserved to the parts.
However, he cannot perform acts that involve the disposition of the contexed right
except that is not expressly authorized (513 c.c)
ARTICLE.57
REVOKE OR RENOUNCE TO THE ATTORNEY
In case of revoke or of renounce to the attorney, this has not affected in confront of
the other part till that there is not substitution of the Defensor or the defense is
assumed from the part personally.
If the substitution and the assumption of the defense personally not be done, the
judge provides to norm of the dispositions on the activity of the parts (217) and on
the contumacy (203-206).
ARTICLE.58
ASSISTANCE OF THE TECHNICAL CONSULTANT
The part, furthermore a Defensor, can do assist from a technical consultant (38).

CHAPTER III
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DUTIES OF PARTIES AND THEIR DEFENSORS

ARTICLE. 59
DUTIES OF LOYALTY
The parties and their lawyers have the duty to behave themselves in process with
loyalty.
In case of failure to that duty from the lawyers’ side the judge has the duty of
reporting to the authority that exercise the disciplinary power on them (law n.85 of
21-10-1975).
ARTICLE. 60
INPROPER OR OFFENSIVE EXPRESSIONS
In the speeches and in the writers presented to the judge should not be included
offensive expressions. The judge has the power to order the cancelation of those
expressions, if it’s made use.

CHAPTER IV
EXPENSES AND PROCEDURAL DAMAGE
ARTICLE. 61
BURDEN OF THE EXPENSES
Each of the parties has the duty to provide to the expenses of the acts that performs
and of those that request and should anticipate for the other necessary acts when
the law and the judge put the anticipation on his charge.
ARTICLE. 62
CONVICTION OF THE EXPENSES
The judge with the sentence that close the process, convicts the succumbing part to
refund of the expenses in favor of the other part and liquidate the amount with the
honorary of defense, (216, 220/2, 259/3).
ARTICLE. 63
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EXCESSIVE PROCEDURAL EXPENSES

In the pronounce the conviction of which to the preceding article the judge can
exclude the excessive expenses or unnecessary.
If there is reciprocal succumbence or take place other just reasons the judge can
compensate partially or totally the expenses.
If there is a conciliation the expenses are compensate.
ARTICLE. 64
EXPENSES OF THE PROCESS OF EXECUTION
The expenses sustained from the creditor to proceed to the execution are to charge
on the executed, (428).
ARTICLE.65
AGGRAVATED RESPONSIBILITY
If the results that the succumbence part has acted or resisted in the process with
mal faith or serious culpa, the judge, on the request of the other part, can convict
the succumbence to the compensation of the damages. Liquidate as an office in the
sentence.
ARTICLE. 66
RESPONSIBILITY OF MORE SUCCUMBENCE
If the succumbence parts are more than one the judge should condemn in
proportion to the respective interest in the case.
If the judge not pronounce on the division of the expenses these go divided in
equal between the parties.
ARTICLE. 67
DEPOSIT FOR THE EXPENSES
The judge on request of the defendant can dispose that the plaintiff plays adequate
guarantee for the refund of the expenses which there is a founded fear that the
zondemn of eventual step can remain not executed.
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TITLE IV
EXERCISE OF THE ACTION
ARTICLE. 68
PRINCIPLE OF THE REQUEST AND INTEREST TO ACT
Who wants to prevail a right in process should propose request to the competent
judge (judiciary act, 1974).
To propose a request a request or to reject of the same is necessary to have interest
(53, 71).
ARTICLE. 69
PRINCIPLE OF THECONTRADICTORY
Except what is foreseen contumacy proceeding (203, 206) the judge cannot decide
at any request if the defendant not has been regularly cited and not is appeared.
ARTICLE. 70
NECESSARY LITISCONSORCE
If the decision should pronounce it Infront of more parties, these should be cited.
In lack of it the judge order the integration of the contradictory in prentory term
from him established, (187, 225, 239, 242).
ARTICLE. 71
VOLUNTARY INTERVENSION
Anyone can intervene (74, 186, 187,190) in a process between other persons if has
a right to prevail. Can also intervene to sustain the opinions of a part when has a
proper interest (68).
ARTICLE. 72
INTERVENTION UPON PART REQUEST
Each part can call in process a third to whom retain common the case, in any stage
and grade of the proceeding.
ARTICLE.73
INTERVENTION FROM ORDER OF THE JUDGE
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The judge can order the intervention in case of a third to whom the case is common
(189-190) in any stage and grade of the proceeding.
ARTICLE. 74
MOMENT OF THE INTERVENTION
The spontaneous intervention or to request of part can happen only in first grade,
or in appeal in view of the art.234.
ARTICLE. 75
EXCLUSION OF THE GUARANTOR
If the guarantor appears in process and accept to assume the case, the guarantee
can be excluded (437 c.c) if the other part not oppose himself.
ARTICLE. 76
SUCCESSION IN THE PROCESS
If during the process the controversial right is transferred to others through acts
between alives the case proceeds between the original parts.
If the transfer of the right happens for reason of death the process is continued
from the successor or in their confronts (211, 212).

TITLE V
POWER OF THE JUDGE
ARTICLE. 77
CORISPONDENCE BETWEEN THE REQUEST AND THE PRONOUNCE
The judge should pronounce on all the request and not beyond the limits of it
(194). However, if the general interest requires it the judge can establish on
questions that have not been posted from the parts.
ARTICLE. 78
PRONOUNCE ACCORDING THE LAW AND ACCORDING THE
EQUITY
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In the pronounce on the case the judge should conform to the legislation of the
state.
In lack of legislative disposition applicable, the judge should conform to the
principles of Islamic law; in the lack of these should apply to the principles of
social justice or to the equity.
ARTICLE. 79
AVAILABILITY OF THE PROVE
The judge should set to foundation of the decision the prove proposed from the
parts.
If retain it necessary can request or research all the prove that are useful to the
decision.
ARTICLE. 80
EVALUATION OF THE PROVE
The judge except that the law disposes otherwise, should evaluate the prove (386-
414 c.c) according a wisdom appreciation. Can desume arguments of prove from
the free interrogatory of the parts (165-167), from the inspections of persons or
things (151) and from any other elements of ascertainment.
ARTICLE. 81
PUBLICATION OF THE SENTENCE
When the publicity of the decision can contribute to repair the damage, the judge
can order that of the sentence can be given publication on the press or spread with
other means.

TITLE VI
CHAPTER I
PROCEDURAL ACTS
ARTICLE. 82
LIBERTY OF FORM
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If it’s not differently disposed from the law the acts can be performed in the form
more suitable to the scope of which are directed, (85-91).
ARTICLE. 83
USE OF THE SOMALI LANGUAGE
In all the process is prescribed the use of the Somali language. In the necessary
cases the judge can nominate an interpreter or translator.
ARTICLE. 84
INTERROGATION OF THE DEAF AND THE DUMB
If should be heard a dumb or a deafmute the interrogation and the answers can be
given for written or through a person capable to comprehend the disabled, (116
c.c).
ARTICLE. 85
CONTENT AND UNDERSIGNING OF THE ACTS OF PART
The introductive acts of the process should contain the indication of the judiciary
of which are directed, of the parts, of the object, of the reason of the request and of
the conclusion. Should be undesigned from the part (51-54) or from his/her lawyer
provided with power of attorney (55).
ARTICLE.86
CONTENT OF THE VERBAL PROCESS
The verbal should contain the indication of the persons intervened, of the place and
the time in which the acts are performed, the description of all the activities
developed. It should be undersigned from the clerk and the judge to a penalty of
nullity (111).

SECTION II
THE AUDIENCE
ARTICLE.87
DIRECTION IF THE AUDIENCE
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The audience is directed from the judge that presides the collage, who takes in
account, that the audience be performed in an ordered way and profitable, (127).
ARTICLE.88
PUBLIC AUDIENCE
The audience is public to penal of nullity; but the judge can dispose that it is
performed to closed doors for security reasons, public order or good custom, (3,
judiciary act, 174).
ARTICLE.89
DUTIES OF WHOM INTERVENE OR ASSIT TO THE AUDIENCE
Who intervene to the audience should attain a correct behavior and cannot take
arms or sticks, (see also art.188, 189 c.pc. for intervention).
ARTICLE.90
WRITING THE VERBAL PROCESS
Of each audience should be written verbal process (86).

SECTION II
THE SENTENCE
ARTICLE.91
Form of the provisions in general except that the law disposes otherwise the
provisions of the judge can have any form suitable to reach of their scope (129,
196, 202, 280, 295, 306, 321/4, 331, 334, 347, 349, 370, 427).
ARTICLE.92
PRONOUMCIATION OF THE SENTENCE IN THE NAME OF THE
SOMALI PEAPLE AND THEIR CONTENTS
The sentence is pronounced in the name of the Somali people and should contain:
1. The heading of the Somali democratic republic.
2. Th indication of the judge and of the judiciary office.
 25

3. The indication of the parts and their Defensor

4. The conclusion.
5. The concise exposition of the performance of the process and the reason of
the decision (3 judiciary act, 1974;
6. The dispositive, the date and undersigning of the judge.
ARTICLE. 93
PUBLICATION AND COMMUNICATION OF THE SENTENCE
The sentence is published through deposit in the clerk. The clerk certifies the take
place of the deposit and gives communication to the parts constituted.

SECTION IV
NOTIFICATIONS
ARTICLE.94
COMMUNICATIONS
The communication is done from the clerk handing over to the destinatary that give
it receipt, or send through recommended post or by means of the judiciary officer
(messenger) (35, 124).
ARTICLE. 95
NOTIFICATION
The notification is done from the judiciary officer through consignment to the
destinatary of copy conform to the original of the act to notify (36, 124).
ARTICLE. 96
NOTIFICATION IN PROPER HANDS
The judiciary officer executes the notification handing over the copy of which to
the article that precede in the hands of the destinatary wherever finds him.
If the destinatary refuses of receiving the copy, the judiciary officer gives act in the
report (106) and the notification is considered executed.
ARTICLE. 97
 26

NOTIFICATION IN THE RESIDENCE ON THE SOJOURN OR IN THE

DOMICILE
In case of untraceable of the destinary the copy of the act can be handed over a
person of the family, of the home or of the office, but not minor of 15 years or
evidently incapable (45 c.c).
ARTICLE. 98
NOTIFICATION THROUGH POSTAL MEANS
If it is not possible execute the notification in the ways indicated in the articles that
precede, the judiciary officer sticks up copy of the act in the bulletin board of the
judiciary office from which the act comes from, and gives notice by recommended
post notifying of the receipt to the destinatary.
ARTICLE. 99
NOTIFICATION AT ELECTED DOMICILE
The notification can be executed at the elected domicile in the cases in which this
been elect in the view of the civil code (43 c.c).
ARTICLE. 100
NOTIFICATION TO A PERSON NOT RESIDENT, NOT DWELLING NOR
DOMICILED IN THE REPUBLIC
If the destinatary have not residence or domicile in Somalia and not has any
attorney, the act is notified through affixing a copy in the bulletin board of the
judiciary officer Infront of whom is proceeding, and through consignment of other
copy to the destinatary by means recommended postal.
A third copy of the act is handed over to the Attorney General that takes care the
transmission to the destinatary through the Ministry of the foreign affairs and the
normal diplomatic channels.
ARTICLE. 101
NOTIFICATION TO A PERSON OF UNKNOWN RESIDENCE AND
DOMICILE
If are of all unknown the places of last residence or domicile of the destinatary (40-
41,43 c.c), the notification occurs though posting of a copy of the act in the
 27

judiciary office in which is proceeded. Other copy will be sent to the Attorney
General.
In the cases foreseen of the present and from the preceding article the notification
is retained accomplished within the 30th day from the accomplishment of the
formality described.
ARTICLE. 102
NOTIFICATION TO THE ADMINISTRATION OF THE STATE
Notification to the administration of the state is done, except special provisions, to
the office of the General Advocate of the State.
ARTICLE. 103
NOTIFICATION OF THE LEGAL COMPANIES
The notification to the legal companies (52 C.C) is made in their Centre to the
physical person that represent it or to any in charge to the same Centre (53/3 C.C).
ARTICLE. 104
NOTIFICATION TO MILITARIES IN ACTIVITY OF SERVICE
If the destinatary is a military in service and is not possible notify him the act in
proper hands, this will be transmitted to the Attorney General that will take care to
forward to the commandant of the corps to which the military pertains.
ARTICLE. 105
TIME OF NOTIFICATION
The notification to proper hands can be done only between the hours seven from
the morning and the hours nineteens.
ARTICLE. 106
The judiciary officer certifies the executed notification through report dated and
undersign to the original and to copy of the act.
The report should indicate with preciseness the person to whom the act has been
handed over and the name in which the notification is done (115).
ARTICLE. 107
NOTIFICATION TO POSTAL SERVICE MEANS
 28

Incase of the notification through recommended post the report should be likewise
written on the original and on the copy of the act and to the original in attached the
notice of receipt.
ARTICLE. 108
NOTIFICATION PER PUBLIC PROCLAMATION AND OTHER MEANS
When the notification presents particular difficulty, because of numerous
dastinataries, of great urgency or for other justified motives, the judge can order
that the notification happens in a different manner from those foreseen in the
articles that precede.

CHARTER III
TERMS
ARTICLE. 109
LEGAL TERMS AND JUDICIAL TERMS
The term for performance of the acts established from the law or from the judge, if
the law permits him (204, 303, 440).
If not declared expressly their prentory the terms are intended ordinatory (127).
The ordinatory terms can be postponed; the prentory terms cannot be postponed
even in the accord of the parts.
ARTICLE. 110
COMPUTATION OF THE TERMS
In the computation of the terms to days and hour is excluded the initial day and the
hour (377 c.c).
For the computation of terms to months and years is observed the common
calendar.
The festival days is computed in the term. If the expiry day is a holiday the expiry
is postponed to the first day not festive (86 labor code).
 29

CHAPTER III
NULLITY OF THE ACTS
ARTICLE. 111
PRONOUNCE OF NULLITY
Cannot be pronounced nullity for in observance or form if the nullity is not
expressly imposed by the law.
However, can be pronounced when the act is lacking of formal requirements
indispensable for the achievement of the scope; however, the nullity cannot never
be pronounced if anyway the act has reached its scope which was directed (122).
ARTICLE. 112
DETACTABILITY AND SANATORIUM
Cannot be pronounced the nullity without the request of part if the law not disposes
that it is pronounced from office (113).
Only the part in which interests is established a requirement can oppose the nullity
for the lack of the same requirement.
The nullity cannot be raised from whom has given cause or has renounced.
ARTICLE. 113
Nullity deriving from the constitution of the judge and of the attorney general is
irremediable and should be raised by office.
The nullity deriving from defect in the constitution of the judge or in the
attendance of the Attorney General (46-47) is irremediable and should be raised by
office (112).
ARTICLE. 114
EXTENSION OF NULLITY
The nullity of an act, when is declared, rends null those consequetive that depends
from It (140, 141 C.C).
ARTICLE. 115
The notification is null if there is an absolute uncertainty on the person to whom is
made or on the date (106).
 30

ARTICLE. 116
INNOVATION OF THE NULL ACTS
The judge that pronounces the nullity should dispose, when it’s possible, the
innovation of the acts to which the nullity is extended (204-242), with the same
provision the judge puts on charge of the responsible of the nullity the expenses for
the innovation of the acts

SECOND BOOK
PROCESS OF COGNITION
TITLE I
PROCESS OF FIRST INSTANCE
CHAPTER I
INTRODUCTION OF THE CASE
SECTION I
CITATION AND CONSTITUTION

ARTICLE. 117
CONTENT OF THE CITATION
In the first grade the request is proposed with petition for citation to the competent
judge, who taking in the account of the place in which should executed the
notification of the act, fixes the audience of appearance of the parts (121) and order
that it should be given to this communication (94).
The appearance of the parts to the first audience is compulsory; in it the judge
accomplishes a tentative conciliation of the controversy (338,latt b). If any of the
parts appear to the first audience, or if not appearing the plaintiff, the defendant not
request that be proceeded in his absence, the process will be distinguished (217).
If the defendant not appear, the judge evaluates the opportunity of his presence,
can order the accompany.
 31

ARTICLE. 118
DECISION ACCORDING EQUITY
If the controversy concerns a disposable right the parts can agree that the judge
decide according equity (78).
ARTICLE. 119
CONTENT OF THE CITATION
The request of which to the article 117 should contain:
1) The indication of the court Infront of which the request is proposed;
2) The complete name and the residence of the plaintiff, the complete name and
the residence of the defendant, as well as of the persons that respectively
assist him.
If the plaintiff or defendant is a legal person the request should contain the
domination of it and the indication of the organ or office that has
representance in process.
3) The determination of the object of the request.
4) Exposition of the facts and of the elements of law based on the request, with
the relative conclusion;
5) Indication of the means of prove of which the plaintiff intends resort and the
documents that exhibits;
6) The name of the attorney and the indication of the power of the attorney,
when that has been issued;
7) Indication of the date of the audience fixed from the judge for the first
appearance and the invitation to the defendant to appear himself in the fixed
audience.
The original of the request, of the listed indications, should be notified to the
defendant to the care of the plaintiff.
ARTICLE. 120
REGISTRATION OF THE CASE ON THE GENERAL REQUESTER,
FORMATION OF THE FILE OF THE OFFICE AND THE INSERTION OF
THE NOTE OF REGISTRATION IN THE FILE.
To the reception of the request of which to the article that precede the clerk of the
court Infront of which the request is proposed writes the case on register and copy
of the introductive request.
 32

In the office’s file will be therefore inserted to the care of the clerk all the
subsequent acts.
ARTICLE. 121
TERMS TO APPEAR
Between the date of the notification of the citation and that of the appearance
should take place at least the following terms:
- Fifteen days, if the place of the notification is situated in the same
circumscription of the court;
- Thirty days, if the place of the notification is situated outside of the
circumscription of the courts but in the same regional sphere;
- Forty days if the place of the notification is situated outside of the region;
- Eighty days if the place of the notification is situated in foreign country in
the sphere of the African continent.
- Hundred sixty days if the place of the notification is situated outside of the
African continent.
The judge addressed the request from the plaintiff, in particular cases of urgence,
can with motivated decree abbreviate up to one third the terms of above
mentioned,
ARTICLE.122
NULLITY OF THE REQUEST
The request is null if missing or is totally uncertain one of the requirements
indicated in art.119 or if has been assigned a lower term to those indicated in the
art. 121.
The nullity is healed from the appearance of the defendant (111/2), except the
rights from this acquired previously (116).
ARTICLE.123
APPEARANCE OF THE PARTS
To the act of appearance plaintiff and defendant is constituted in process, the
defendant proposes orally or with appearance it’s defense, eventual reconventional
request (21) and the indication of the means of the prove of which intends to
defend himself.
 33

If intends call a third in case should declare to the first audience (72, 74, 188).
ARTICLE. 124
NOTIFICATIONS AND COMMUNICATIONS DURING OF THE
PROCEEDING
After the constitution in process all the notification and the communication are
done to the attorney constituted or if there is no attorney, to the parts in the
residence from him indicated (119,n.2).
ARTICLE.125
DELAYED CONSTITUTION OF THE PARTS
Except what is disposed in the art.123 the judge can assign to the parts a new term
to constitute (116), if one of the parts not constitutes himself in the new term it will
be declared contumacy and the process continues in his absence (203, 204).
ARTICLE. 126
IMMUTABILITY OF THE DESIGNATED JUDGE
The designated judge for the treatment of the case cannot be substituted till the
decision, except impediment of serious reasons of service or when exist motives of
rejection, abstention (29) or responsibility (33).

CHAPTER II
INTRODUCTION OF THE CASE
SECTION I
POWERS OF THE JUDGE
ARTICLE. 127
DIRECTION OF THE PROCEEDING
The judge exercises all the powers intended to the more considerable and loyal
performance of the proceeding.
 34

He fixes the subsequent audience and the terms with which the parts should make
the procedural acts (86).
ARTICLE. 128
FORMS OF THE PROVISION
The provisions issued from the judge in the stage of instruction have the form of
the ordinance (134); if they are pronounced in audience are retained known from
the present parts. If someone of the parts is not present or if the ordinance is
pronounced outside audience (196), the clerk will give communication (94) within
the subsequent three days.
ARTICLE. 129
EFFECT AND REVOCATION OF THE ORDINANCE
The ordinance issued during the instruction not prejudice the decision of the case
(197).
They can be always modified and revoked from the judge that has issued (149/3,
349).
Not are modifiable nor revocable the ordinance declared expressly not appealable
from the law (130/2, 216/2, 321/4, 359, 363,412/5), or those which, upon accord of
the parts, having pronounced in matter of which these can dispose, except that the
parts be subsequently accord for the modification or the revoke.
ARTICLE. 130
ORDINANCE OF CONDEMN TO PECUNIARY
The condemn to pecuniary penalty foreseen from the present code (41/2) are
pronounced with ordinance. Adverse of them the condemned part can propose
complaint to the same Jude that has issued within the term of three days (183).
The Jude decides on the complaint with ordinance not appealable.
The ordinance of which to the present article constitute executive title (338).
 35

SECTION II
PROCESSING OF THE CASE
ARTICLE. 131
FORM OF THE TREATMENT
The treatment of the case Infront of the judge can be done orally; the judge can
authorize the exchange of written appearance, postponing the process,
From the treatment of the case is drew up verbal process (86) in which are inserted
the conclusion of the parts (85) and the provisions of the judge (90).
ARTICLE. 132
VERIFICATION OF THE REGULARITY OF THE CONSTITUTION
The judge verifies as office the regularity of the constitutions and, when requires
invites the parts to regulate and complete the documents offered in prove.
If points out a defect of representance or assistance (51-53>55) can assign a term
in order to constitutes the person whom awaits the representamen or assistance,
except the cases in which is already verified the expiration.
ARTICLE. 133
FIRST AUDIENCE OF THE PROCESS
In the first audience of treatment the parts can modify the requests, the exceptions,
the conclusions.
The judge request to the parts the necessary clearances and indicate the issues on
which retain appropriate the treatment. Except what disposed to the first comma,
modicaton of the request, of the exceptions and of the conclusions can be done
even during of the case before this has not been assigned to sentence.
ARTICLE. 134
INSTRUCTORY ACTIVITY OF THE JUDGE
The judge issues in audience the necessary instructory provision (128), but can also
reserves of pronouncing it outside audience in the subsequent five days.
ARTICLE. 135
ASSIGNMENT OF THE CASE TO SENTENCE
 36

If the judge retain that the case is mature for the decision without need of
assumption of means of prove (180), invites the parts to formulate the proper
definitive conclusions and assigns the case to sentence.
But if retains that its necessary to assume means of prove, disposes in conformity
fixing the audience for the assumption.

SECTION III
PROPATORY INSTRUCTION
ARTICLE. 136
NOMINATON OF THE TECHNICAL CONSULTANT
In the cases in which the judge retains necessary to use of the cognitions of an
expert nominate one or more consultants and fixes the audience in which this
should appear.
ARTICLE. 137
OATH OF THR CONSULTANT
To the audience of appearance, the judge after having advised the consultant of the
functions that is called to perform and having informed the questions which should
answer, collects oath of the same consultant to carry out faithfully the task
entrusted him (291, 299-303 pc; 41).
ARTICLE. 138
ACTIVITY OF THE CONSULTANT
The consultant assists to the audience to which is invited from the judge, performs
all the necessary inquiry, collects information of the parts, or from thirds and lastly
deposits written report expressing his opinion and answering to the questions (39).
To the operations performed from the consultant can assist the parts with their
lawyers and with consultant of parts.
ARTICLE. 139
VERBAL PROCESS
 37

Of all the operations performed from the consultant should be written verbal
process.
ARTICLE. 140
RINNOVATION OF THE ENQUIRY AND SUBSTITUTION OF THE
CONSULTANT
If the judge retains it appropriate can always dispose the renovation of the acts
accomplished from the consultant and, if the case, the substitution of the same
consultant.
ARTICLE. 141
ASSISTENCE TO THE AUDIENCE AND PART CONSULTANT
The parts can autonomously nominate a proper consultant that assists to the
operation of the consultant’s office, without that being able to put in a word
(speak) or interfere in the operation of the office’s consultant.
Together with to the proper appearance or conclusional deductions the parts can
present technical report of their proper consultants.
ARTICLE. 142
TIME, PLACE AND WAY OF ASSUMPTION OF THE PROVE
In the arrangement of means of prove the judge establishes an audience, the place
and the way of the assumption (49).
If the assumption not exhausts in the fixed audience can be continued in a
subsequent day.
ARTICLE. 143
ASSUMPTION OUTSIDE OF THE CIRCUMSCRIPTION OF THE COURT
If the means of prove should be assumed outside of the circumscription of the
court, the judge can delegate for the assumption the judge of the place, or disposes
that the proper office be transferred in the place of assumption.
In the audience of delegation, the judge fixes a term within which the prove should
be assumed and the audience for the appearance of the parts Infront of him for the
continuation of the process.
ARTICLE. 144
 38

DELEGATED JUDGE TO THE ASSUMPTION OF THE PROVE

The delegated judge on the interested parts request, or also of office, proceed to the
assumption of means of prove and send the verbal to the delegator judge within the
fixed term and however before the audience of continuation of the process.
The term previously mentioned can be postponed on part request from the
delegator judge.
ARTICLE. 145
THE ROGATORY OF THE SOMALI JUDGES TO THE FOREIGN
The rogatories of Somali judges to the foreign for the execution of the instructor
provision are transmitted through diplomatic channel.
When the rogatory concerns Somali citizens resident to abroad the judge delegate
to the competent consulate authority.
ARTICLE. 146
PROVISIONS OF THE DELEGATED JUDGE
The judge that proceeds to the assumption of the means of prove, even is
delegated, pronounce with ordinance (128) to all the questions that arise in the
course of it.
ARTICLE. 147
ASSISTANCE OF THE PARTS TO THE ASSUMPTION OF THE PROVE
The parts can attend personally to the assumption of means of prove.
ARTICLE. 148
VERBAL PROCESS OF THEASSUMPTION OF THE PROVE
From the assumption of the means of the prove is written verbal process (86).
The declaration of the parts and of the testimonies are reported in first person after
the complete generality (full name) of the declarant and then are read to the
declarant that unsign it.
ARTICLE. 149
DECADENCE OF THE ASSUMPTION OF THE PROVE
 39

If no one of the parts is present in the day fixed for the initiation or the prosecution
of the prove the judge declares expired form the right to the assumption (142).
Similarly provides upon part request appeared, if not presents himself that who has
asked the assumption of prove.
The interested part can in the subsequent audience ask the revocation of the
ordinance that disposes the expiry from the prove and the judge revocates it, if he
identifies that the missing appearance was due to serious reasons.
ARTICLE. 150
CLOSURE OF THE ASSUMPTION OF THE PROVE
When the assumption is ended or it has been declared the expiry in view of the
preceding article or when the judge retains unnecessary the proceeding of the
prove (79-80), order the closure of the assumption.
ARTICLE. 151
ORDER OF EXHIBITION TO THE PARTS OR TO THE THIRDS
The judge can order the inspection or the exhibition of things in possess of one of
the parts or of a third (80), can order also the exhibition of documents kept in
custody from thirds when it retains necessary the acquisition to the process (293,
n.2).
Ordering the exhibition, the judge fixes the times the place and the way of the
same exhibitions (142).
ARTICLE. 152
GUARDIANSHIP OF THE RIGHTS OF THE THIRD
The third whom is been ordered the exhibition can oppose it intervening in the
process, before of the term fixed for the exhibition.
ARTICLE.153
REQUEST OF INFORMATION TO THE PUBLIC ADMINISTRATION
When retains it necessary the judge can ask to the public administration written
information related to acts and documents of the same administration (80).
ARTICLE.154
DISREGARD OF THE PRIVATE WRITING
 40

Who against whom is produced a written to him attributed (391 c.c), if intends
disregard it, is retained to deny formally the proper script or the proper
undersigning.
ARTICLE.155
TACIT RECOGNITION OF THE PRIVATE WRITTEN
The script produced in process is retained recognized if the part whom is attributed
it is in contumacy, or if the part is appeared and not declare of disregard of it, is
retained to deny formally to the first audience of production.
ARTICLE.156
REQUEST OF VERIFICATION
The part that intends to use of the disregarded script can request the verification
proposing means of prove or indicating the script that can serve as comparison.
The judge disposes the custody of the document, order the acquisition of eventual
script of comparison and can order to the part, that has disregarded the script, to
write under dictation, even with the presence of technical consultant if the part
refuses or not presents himself, the script is retained recognized.
ARTICLE.157
WAY OF PROPOSITION OF THE FALSE COMPTAIN
In any stage and grade of the proceeding can be proposed complain of falsity in
relation to a document produced in process (388 c.c; 162).
ARTICLE.158
CONTENT OF THE COMPLAIN OF FALSITY
The complaint should contain, to a penalty of nullity (111), the indication of the
elements and of the prove of the falsity and should be proposed personally from
the part to from an attorney provided of special mandate to propose it (55-56).
ARTICLE.159
INTERPELLATE OF THE PART THAT HAS PRODUCED THE SCRIPT
The judge that has received the complaint interpellated the part against whom is
proposed it, if this confirms that he wants to use of the document the judge
disposes the adequate instructor means for the ascertainment.
 41

In that case is compulsory the intervention in the case of the attorney general (A.G)
if the part interpellated give up to use the document cannot be used in no way in
the process.
ARTICLE.160
SEQUESTRATION OF THE DOCUMENT
Before starting the ascertainment on false the judge provides to sequestrate of the
documents and to all other necessary measures to ensure its availability in the
course of the instruction.
ARTICLE.161
SUSPENTION OF THE PROCEEDING IN WHICH THE COMPLAIN OF
FALSITY IS PROPOSED
In the proceeding in which is proposed complain of falsity remain suspended till
the sentence on false be passed in adjudicated (222).
However, the judge, if retains it adequate and if the both of the parts request it, can
decide in the merit together with the process of falsify.
ARTICLE.162
PREPOSITION OF THE FALSE COMPLAINT
If the complain of falsify is proposed in appeal or before to the supreme court and
are served the conditions of which to article 158 and 159, the process should be
suspended and remitted to the judge of the first instance for the ascertainment of
the false.
ARTICLE.163
JUDICIAL CONFESSION
The judicial confession can be spontaneous or provoked through formal
interrogatory (165).
ARTICLE.164
SPONTANEOUS CONFESSION
The spontaneous confession can be contained in any procedural act signed from
the part personally, or can be made in the course of not formal interrogatory (80),
disposed from the judge in any stage or grade of the process (610 c.c).
 42

ARTICLE. 165
FORMAL INTERROGATORY
The formal interrogatory should be directed in separate articles and specific.
Cannot be made questions on different facts from those deducted in the articles,
except that the parts are agreed on it.
ARTICLE. 166
ANSWER
The part interrogated should answer personally without using of prepared written
previously, but the judge can authorize to consult with notes and clipboard when
the circumstances require them.
ARTICLE.167
MISSING ANSWER
If the part isn’t present or refuses to answer without reason, the deducted facts in
the interrogatory can be retained admitted (382/2).
ARTICLE. 168
DEFERIMENT OF THE DECISIVE OATH
Each of the parts can defer to the other oath to decide the controversy (407,610
c.c).
The oath should be deferred with written act undesigned from the part and
formulated in separate articles in clear way and specific.
ARTICLE.169
REFERENCE OF THE OATH
Before of having declared to be ready to swear the part whom the oath is deferred
can refer in the same limits to other part (407/2 c.c).
ARTICLE.170
IRREVOCABILITY
Who has deferred or referred the oath cannot revocate it when the adversary has
declared of being ready to swear (409 c.c).
 43

ARTICLE. 171
FORMULA OF THE OATH
In the cases provided from that preceding the formula of the oath cannot be
anyway motified.
ARTICLE.172
PERFORMANCE OF THE OATH
The oath is performed personally from the part before to the judge with formula
solemn conform to the religion professed from the swearing.
ARTICLE. 173
MISSING PERFORMANCE OF THE OATH
The part whom is been deferred or referred the oath and refuses of performing it
without just reason, succumbs on points of the controversy object of the oath (411
c.c).
ARTICLE.174
DEFFERIMENT OF THE SUPPLEMENTARY OATH
The oath can be also deferred from the judge to each one of the parts on any point
of the controversy (412 c.c).
The deferred oath from the judge to a part cannot from this be referred to the other
part.
ARTICLE.175
POSTPONEMENT TO THE NORMS ON DECISORY OATH
Except what is disposed from the previous article is applied to the oath deferred
from the judge the dispositions foreseen for the oath deferred from the part.
ARTICLE. 176
MODALITY OF DEDUCTION AND ORDINANCE OF ADMISSION OF
THE PROVE BY TESTIMONIES
The prove by testimonies (397-400 c.c) should be requested through indication of
the persons and of the facts on which each one of them should be interrogated.
 44

The part against whom the prove is proposed can oppose it or can indicate to his
turn persons to interrogate.
The judge admits or rejects the prove indicating, in the first case, the lists of the
testimonies admitted by each part.
With the ordinance of admission, the judge fixes the audience and the modality of
the assumption.
ARTICLE. 177
INCAPACITY TO TESTIFY
Cannot be admitted as testimonies the persons that might participate to the process,
to defend of their interest (71).
ARTICLE. 178
PROHIBITION OF TESTIFYING
Cannot testify the wife of the part, his relatives or kinship up to the fourth grade
(34,37 c.c), except the case not regards question regulated from the personal
institute (family law)9.
ARTICLE. 179
AUDITION AS TESTIMONY OF THE MINORS OF FIFTEEN YEARS
If necessary, can be listened as testimonies the minors of fifteen years (45 c.c), but
they do not give oath.
ARTICLE.180
OATH OF THE TESTIMONY AND THEIR ADMONISHMENT
The testimonies are examined separately. Before the deposition the judge reads
them the formula of the oath, the testimony swears repeating the formula.
The judge should in account of the religion of the testimony and if this not
professes any religion invites him to pronounce a solemn declaration.
ARTICLE.181
IDENTIFICATION OF THE TESTIMONIES

9
Family law n.23 of 11 january 1975 (B.U. ‘F.R’ sppl.n.1 to n.3).
 45

The testimony should be preventively identified with the home and with all the
other necessary elements.
The judge can ascertain it with the more appropriate means of the reliability of the
testimony.
ARTICLE. 182
INTERROGATION AND ANSWERS
The judge interrogates the testimony on facts on which he is called to dispose, but
may, to request of parts or of office, address him all the questions that he retains
appropriate.
The parts and the attorney, if present, cannot interrogate directly the testimony.
If there is a divergency between the dispositions of the two testimony the judge can
put them to confrontation.
ARTICLE.183
MISSING APPEARANCE OF THE TESTIMONIES
The testimony that regularly cited not be present can be condemned to a penal
pecuniary from Sh.So.20.00 to 200,00.
The condemn can be revoked from the same judge that has issued, if the testimony
will be present subsequently adducing valid reasons of justification (129, 130).
ARTICLE.184
REFUSAL OF GIVING EVIDENCE AND FALSE TESTIMONY
If the testimony refuses without reason to give evidence or appear reticent or
obviously false (291, p.c) the judge denounces him to the Attorney General in the
serious cases can order him the arrest (28 subs. p.p.c).
ARTICLE.185
POWER OF THE JUDGE DURING THE INSTRUCTION
The judge, during the probatory instruction, can proceed to inspect of places,
mobile things and immobile, never the less to corporal inspection (151).
 46

In such activity can do assist from a technical consultant (136-138), interrogate

testimonies and give all the necessary depositions for the best outcome of the
inspection.

SECTION IV
THIRD INTERVENTION AND REUNION OF PROCEEDINGS
ARTICLE.186
CONSTITUTION OF THE THIRD INTERVENING
The third that intend constitute himself in process should be present in audience or
deposit in clerk’s office an appearance with the copies for the other parts, the
documents and the attorney (71). If the constitution happened in the clerk’s office
the clerk is retained to give communication to the parts personally constituted.
ARTICLE.187
CONSTITUTION AFTER THE FIRST AUDIENCE
The third intervention can happen till that the case has not been assigned to
sentence. But if it comes after the first audience (133) the third cannot perform the
acts that are not anymore consented to the other parts.
ARTICLE. 188
CALL OF A THIRD IN THE CASE
The part that intends to call a third in case (72) should cite him to appear to the
first audience observing the terms of which to the art.121 c.p.c. The judge when is
requested can allow a term for the call of the third fixing a new audience (217).
ARTICLE.189
CALL OF A THIRD BY ORDER OF HE JUDGE
In any moment of the process the judge calls a third ordering to the parts to cite
him for an audience that he fixes to the scope (73).
In no one of the parts provide to the citation the judge disposes with ordinance the
cancelation of the case.
 47

ARTICLE.190
CONSTITUTION OF THIRD CALLED
The third called in the cause is constituted through presenting himself or deposit of
appearance.
ARTICLE.191
REUNION OF PROCEEDINGS RELATED TO THE SAME CASE AND
REUNION OF CONNECTED CASES
If two or more proceedings related to the same case pending before to the same
judge, the judge by office disposes the reunion.
The reunion is disposed from the president of the court if the proceeding pends
Infront of the different judges of the same court.
The same disposition is applied if the proceedings are connected or accessories in
view of the articles 19 and 20 of c.p.c.

CHAPTER III
DECISION OF THE CASE
ARTICLE.192
DISCUSSION OF THE CASE
To the last audience of proceeding destined to the assignment of the case to
sentence, the Jude after having listened the discussion of the parts assign the case
to sentence.
ARTICLE.193
DELIBERATION OF THE DECISION
The decision is deliberated in council room. If more judges have participated to the
instruction they participate to the decision.
 48

The law establishes the cases in which the instruction is trusted to a single judge
and the decision to a judicant college nominated to the scope 10.
In case of collegial decision this is taken to a majority of the votes, the president of
the college votes at last (92/2).
The content of the decision will be expressed in the dispositive of the sentence, that
before the publication (93), will be proceeded from the drawing up of the
motivation.
ARTICLE. 194
EXAM OF THE REQUEST AND EXCEPTION
In the deliberation of the sentence the judge should decide on all the requests
proposed and the related exceptions defying the process.
ARTICLE.195
GENERIC PROVVIONAL CONDEMN
If is ascertained the existence of a right but controverted the quantity of the owed
performance, the judge upon part request can limit himself to pronounce generic
condemn to the performance ordering that the process continue for the liquidation
In that case, always upon part request, the judge can condemn the debtor to the
payment of a provisional sum, according to his wise appreciation.
ARTICLE.196
FORM OF THE PROVISION OF THE JUDGE WHEN NOT DEFYING
THE CASE
In the cases in which the judge cannot define with sentence a case assigned to
sentence pronounce ordinance (128) disposing appropriate provisions for the
continuation of the process, the acquisition of new proves or what other retains
necessary.
ARTICLE.197
ORDINANCE PRONOUNCED DURING THE CASE

10
) see art.1-3 of the law n.18 of the November, 1973- institution of judicant college as the only judicant organs for
the administration of the justice.
 49

The ordinance in that way pronounced not prejudice the definitive decision of the
case are always modifiable or revocable from the same judge that has issued (129),
who will remain vested of all the powers for the further treatment of the case (131
ss).

CHAPTER IV
EXECUTORITY AND NOTIFICATION OF THE SENTENCES
ARTICLE.198
PROVISIONAL EXECUTION
The sentence subject to appeal can be, on part request, declared provisionally
executive with bail or without, if the request is founded on public (387 c.c) act or
recognized script (391 c.c) or sentence passed in adjudicated (222), or is there a
serious danger in the delay of the execution.
The provisional execution should be allowed, upon part request, for the sentence
that pronounce condemn to the payment of provisional (195) or to alimentary
performance (32 pers. Institute).
ARTICLE.199
CONCESSION OR REVOKE OF THE PROVISIONAL EXECUTION IN
APPEAL
If the judge of first grade has not pronounced on the request of provisional
execution or has rejected (198) the interested part can repropose it to the judge of
appeal with principal petition or with that incidental with the same form and to the
same judge of appeal can request to be revocate the concession of the provisional
execution or be suspended the started proceeding (240) that become suspended the
started execution.
ARTICLE.200
WAY OF THE NOTIFICATION OF THE SENTENCE
The notification of sentence, to the end of the starting date of the term for appeal,
is made to the attorney constituted or to the part, in view of the norm 124
(221,232,233).
 50

CHAPTER V
CORRECTION OF THE SENTENCES AND OF THE ORDINANCE
ARTICLE.201
CASES OF CORRECTION
The judge that has issued the sentence or the ordinance, upon request of part or
also from office, can always proceed to the correction of material errors or of
calculation in which he met in the drafting of the provisions.
ARTICLE.202
PROVISIONS OF CORRECTION
To the correction of which to the preceding article the judge provides with decree
if there is an accord of the parts in regard of the correction; otherwise disposes with
ordinance after have heard the parts.

CHAPTER VI
THE PROCEEDING IN CONTUMACY
ARTICLE.203
CONTUMACY OF THE PLAINTIFF
If the plaintiff not constitutes himself in process the judge can order that the case
be cancelled from the role and declares distinguished the process.
If however the defendant is constituted and request that the process be prosecuted
in absence of the plaintiff, the judge declares the contumacy of this last and
disposes for the prosecution of the process (135).
ARTICLE.204
CONTIMUCY OF THE DEFENDANT
If the defendant not constitutes himself and the judge notice defect in the
notification of the citation (122), fixes to the plaintiff a perentory term to renew it.
 51

The renovation prevents any decadency. If the defendant not constitutes even to the
new audience, the judge except what is disposed to the last comma of the article
117 cpc, declares the contumacy and order the continuation of the process.
If the order of renovation of the notification of the citation not performed from the
plaintiff the judge order the cancelation of the case from the role and the process
extinguishes (217).
ARTICLE.205
NOTIFICATION AND COMMUNICATION OF ACTS TO THE
CONTUMACIOUS.
The provisions that dispose on the instruction, the new questions, exceptions or
reconventions are notified to the contumacious personally (200).
All the other acts are considered communicated with the deposit in clerk’s office,
the sentence is notified to the part personally.
ARTICLE.206
CONSTITUSION OF THE CONTUMACIOUS
The part declared contumacious can constitutes in any moment through deposit of
appearance in the clerk or presentation to the audience till that the case not has
been assigned to sentence.
After the constitution can ask to the judge to set again in terms to perform
defensive activities that would be precluded.
The judge evaluated the reasons that caused the contumacy opportunity to accept
the request of which ahead decide on it with ordinance.

CHAPTER VII
SUSPENTION, INTERRUPTION AND EXTINGTION OF THE PROCESS.
ARTICLE.207
NECESSARY SUSPENTION 11

11
Process in which is request the regulation of jurisdiction or competence (28); or the recusation of the judge (30);
if is proposed false quarrel
 52

the judge disposes that the civil process be suspended in the case foreseen from the
art.272 of the penal procedure code and in any other care in which the decision of
the case depends from the resolution of another civil controversy or administrative.
ARTICLE.208
SUSPENTION ON PART REQUEST
on unanimous request of all the parts the judge can dispose that the process remain
suspended for a period not exceeding to three months (209).
ARTICLE.209
FIXITION OF THE NEW AUDIENCE AFTER THE SUSPENSION
If with the provision of suspension has not been fixed the date in which the process
should be continued, the parts should request the fixation within the prentory terms
of four months for the annulment of the case of suspension (207).
The request is proposed, at least ten days before the expiry of the terms of which
ahead, to the judge that has initiated the process or to the president of the office.
ARTICLE.210
EFFECT OF THE SUSPENSION
During the suspension (207-208) cannot be done acts of the proceeding; the
ongoing terms are interrupted and will start to begin from the day of the new
audience fixed for the continuation.

SECTION.II
IMTERRUPSION OF THE PROCESS
ARTICLE.211
DEATH OR LOST OF THE CAPACITY OF THE PART BEFORE THE
CONSTITUTION
If before the constitution occur the death or the loss of capacity of one of the parts
or of hislegal reppresentant or the annulment of the report of reppresentance, the
process is interrupted, except that those of whom awaits continue it voluntarily
constituted or are cited from the other part.
 53

ARTICLE.212
DEATH OR LOST OF THE CAPACITY OF THE CONSTITUTED PART
OR FROM THE CONTUMACIOUS
The process is equally interrupted if one of the events of which the preceding
article verifies during of the instruction.
If it verifies instead after that the case has been to sentence it has not affected on
the decision.
ARTICLE.213
DEATH OR IMPEDIMENT OF THE ATTORNEY
The death, the cancelation or suspension from the “albo” of legal reppresentant
interrupt the process till that the part is not constituted personally or nominate
another reppresentant.
The revoke of the power of attorney or the renouncement to it are not reason of
interruption (57).
ARTICLE.214
RESUMPTION OF THE PROCESS
The interrupted process for one of the reasons of which to the article that precede
can be summed up to the request of one of the parts within the terms of three
months from the verification of the interruption.

ARTICLE.215
EXTINCTION OF THE PROCESS
In case of interruption is applied the disposition of which to the art.210,
If process not be prosecuted and resumed with in the terms foreseen from the
preceding norms, it will be declared extinct.
 54

SECTION. III
EXTINCTION OF THE PROCESS
ARTICLE.216
RENOUNCE TO THE ACTS OF THE PROCESS
The process is extinguished for renounce of the acts of process done from all the
parts without reserve or conditions. Upon accord of the parts, or even from office,
the judge provides with ordinance not appealable to the liquidation of the expenses
(62-63).
ARTICLE.217
EXTINCTION OF THE PROCESS FOR INACTIVITY OF THE PARTS
The process is extinguished also for inactivity of the parts, if no one of them
appear nether to the first audience nor to that subsequently fixed from the judge
(117/3, 203, 204/2, 215,219). The process is extinguished also if the parts not
observe the terms for the resumption after the suspension of the process (204).
The extinction is declared from the judge with ordinance or with sentence and
operates by law.
ARTICLE.218
COMMUNICATION AND APPELLABILITY OF THE ORDINANCE
The provision that declares the extinction is communicated to the parts, against it is
admitted complaint to the same judge that has issued it, who can revocate the same
provision.
ARTICLE.219
MISSED APPEARANCE TO THE AUDIENCE
If in the course of the process no one of the parts is present to the audience, the
judge fixes a new audience for their appearance, if the parts not constitute not even
to that audience the process extinguishes.
ARTICLE.220
EFFECT OF THE EXTINCTION OF THE PROCESS
 55

The extinction of the process not extinguishes the action; but renders in effective
the acts accomplished; the proves collected can be eventually evaluated from the
judge in a new process, according to him prudent appreciation (80).
The expenses of the extinguished process are on the parts that have anticipated
(61).

TITLE.II
APPEALS
CHAPTER.I
MEANS OF APPEAL
ARTICLE. 221
MEANS OF APPEAL
The means for the appeal of the sentence are: the appeal (230-245), the complaint
to the supreme court (246-265), the revocation (266, 270), the opposition to the
execution (432-436).
ARTICLE.222
FORMAL ADJUDICATED MATTER
Is said passed in adjudicated the sentence that is not any more subject to appeal
(221, 220), except in the hypothesis of revocation (266).
ARTICLE.223
TERMS FOR THE APEAL
The term to propose the appeal in 30 days; it is a prentory and starts from the date
in which the sentence it has been notified (110, 200). Independently from the
notification no appeal can be proposed passed one year from the publication of the
sentence in view of the article 93 cpc.
ARTICLE.224
PLACE OF THE NOTIFICATION OF THE APPEAL
 56

The notification should be notified to the opposite part in the place indicated from
him as proper residence in the introductive act or in the appearance of response of
the first grade process (119,n.2; 123), except what in disposed from the article. 200
cpc.
ARTICLE.225
INTEGRATION OF THE CONTRADICTORY
If the sentence is pronounced between more parts, is it appealed only in front of
one of them; the judge, when necessary, order the integration of the contradictory
(239) fixing a term for notification of the appeal also to the other parts (70).
ARTICLE.226
INCIDENTAL APPEAL
The part against whom the sentence has been appealed and the other parts is
indicated in the article that precede can propose in the same process through
incidental appeal against the sentence (233).
The term of 30 days for the incidental appeal starts from the date of the
notification of the principal appeal.
ARTICLE.227
REUNION OF THE SEPARATE APPEAL
All the appeals proposed separately against the same sentence should be reunited
in only one process (191).
ARTICLE.228
SUSPENSION OF THE EXECUTION
The execution of the sentence, when is not ordered the provisional execution (198),
remain suspended if is proposed appeal; the other types of appeal not suspend the
execution except that in the cases expressly foreseen from the law (28,256,270).
ARTICLE.229
EFFECT OF THE EXTINCTION OF THE PROCESS OF APPEAL
The extinction of the process of appeal renders in adjudicated (222) the sentence
appealed.
 57

CHAPTER II
APPEAL
ARTICLE.230
APPEALABLE SENTENCES
Can be appealed, provided that the appeal not been excluded from the law12 or
from the accord of the parts, the sentences pronounced in first grade from the
district tribunal and Regionals (7, 8).
ARTICLE.231
APPEAL COURT.
For the appeal against the sentences of district and regional tribunals is competent
the court of appeal (9) in which the circumscription has seat the judge that has
pronounced the sentence.
ARTICLE.232
FORM OF THE APPEAL
The appeal is proposed through citation containing the summary exposition of the
facts and the reasons of the appeal, presented to the judge that has issued the
appealed provision, who will transmit without delay to the appeal judge, together
with the file of the process of first grade enclosed, provided with of the appealed
provision.
ARTICLE.233
WAY OF PROPOSING THE INCIDENTAL APPEAL
The incidental appeal is proposed through appearance of response to the principal
appeal.
ARTICLE.234
INTERVENTION IN APPEAL
In the appeal process is admitted the intervention of thirds that might do opposition
to the execution of the sentence to protect of the proper rights (74,186).

12
. The decision of the regional court in matter of controversy of labour can be appealed only in front to the
supreme court (art.139/4, 140 laabour code)
 58

ARTICLE.235
REQUEST AND NEW EXCEPTIONS
In the process of appeal cannot be proposed new request, and, if proposed, should
be rejected by office; can be instead proposed new exceptions, new documents
and indicated means of proof not produced in first grade can be requested the
interests, the fruits and the accessories matured after the appealed sentence (160,
218, 223 c.c).
ARTICLE.236
EXPIRY OF THE REQUEST AND OF THE EXCEPTIONS NOT
REPROPOSED
The requests and exceptions not accepted in the sentence of first grade are intended
renounced if not are expressly reproposed in appeal.
ARTICLE.237
FORM AND TERMS OF THE CONSTITUTION IN APPEAL
The Constitution in appeal happens in the modalities and in the forms indicated for
the first-grade process.
ARTICLE.238
UNPROCEEDING OF THE APPEAL
If the appellant not constitutes to the first audience the judge postpones the case to
a next audience of which the clerk gives communication to the appellant; if even to
the new audience the appellant not appears the appeal is declared unproceedable
(245).
ARTICLE.239
INSTRUCTORY ACTIVITY OF THE APPEAL JUDGE
The appeal judge, to the first audience fixed for the proceeding, verifies the regular
constitution of the parts (132), orders when required the integration of the
contradictory and the notification to the other eventual parts in view of the
article.70.
Declares, in the case provided from the article that precede un proceedable of the
appeal; declares also the contumacy of the appellate when this not been appeared
 59

and issues with ordinance all the necessary Provisions for the proceeding of the
process.
in any case, ordering, if necessary, the appearance of the parts, should try a
tentative of reconciliation of the litigation.
ARTICLE.240
PROVISIONS ON THE PROVISIONAL EXECUTION.
The appeal judge provides eventually on the request to him is proposed in view of
the article.199 Cpv, relatively to the provisional execution or to the suspension of
it.
ARTICLE.241
REMISSION OF THE CASE TO SENTENCE
Ended the instructory of the process of appeal the judge fixes an audience for the
assignment of the case to sentence. in that audience the parts specify the proper
conclusion after that the case will be assigned the sentence (135).
ARTICLE.242
REMISSION OF THE CASE TO THE JUDGE OF THE FIRST GRADE
The appeal judge can with sentence remit the case to the first judge only if notices
the nullity of the introductive act of the first process (122) or of any act that cannot
be renewed in appeal; the missed integration of the contradictory in first grade; a
defect of competence (23) or wrong of the declaration of extinction of the process
of first grade (216-219).
ARTICLE.243
POSTPONEMENT TO THE NORMS RELATED TO THE FIRST GRADE
Except what is foreseen in the article.235, to dispose the assumption of new proof,
the judge of appeal will observe the norms set for the process of first grade.
ARTICLE.244
APPLICABILITY OF THE NORMS SET FOR THE PROCESS OF FIRST
GRADE
All the norms dictated for the process of first grade are applicable to the appeal
process if not incompatible with the dispositions is of this chapter.
 60

ARTICLE.245
INADMISSIBLE OR UNPROCEEDABLE
The appeal declared inadmissible (223) or un proceedable (238) cannot be
proposed again even if not is expired the fixed term from the law.

CHAPTER III
PETITION TO THE SUPREME COURT
ARTICLE.246
APPEALABLE SENTENCES BEFORE THE SUPREME COURT AND
REASONS OF PETITION
Are appealable with petition to the Supreme Court the sentences of second grade
and those of first grade against which is not admitted the appeal13;
1) for reason related to the jurisdiction or to the competence;
2) for violation or false application of norms of law;
3) For nullity of the sentence or of the proceeding;
4) For omission or insufficient motivation on a decisive point of the
controversy prospected from the parts or raised by office.

ARTICLE. 247
OTHER CASES OF APPEAL TO THE SUPREME COURT
The law disposes the other cases in which the jurisdictional decisions can be
appealed with petition to the Supreme Court (26).
ARTICLE.248
PETITION IN THE INTEREST OF THE LAW

13
The appeal of the sentence issued from the regional judge in matter of labour is an exclusive competence of the
supreme court.
 61

Even if the interested parts have not proposed petition to the Supreme Court or
have renounced this can be proposed from The Office of the Attorney General in
the interest of the law (47, 15/2, lett “c” of the judiciary act, 1970). In that case the
parts can intervene to sustain or resist to the petition.
ARTICLE.249
TERMS TO PROPOSE PETITION
The term to purpose petition is 30 days from the date of notification (200). If the
sentence is not notified, the petition become inappealable passed one year from the
publication of the sentence (223).
ARTICLE.25014
UNDERSIGNING OF THE PETITION AND IT’S CONTENT
The petition to the supreme court should be undersigned from a lawyer or attorney
registered to the “albo” and should contain:
1) The indication of the name and residence of the parts;
2) The extremes of the sentence appealed;
3) The summary exposition of the facts of the case;
4) The reasons of the petition with the indication of the norms of law on which
they are based on;
5) The indication of the attorney if it is conferred with separate act;
The inobservance of the above prescriptions provokes the inadmissibility of the
petition (259).

ARTICLE.251
ELECTION OF DOMICILE
The petitioner part elects domicile at the lawyer or attorney that represents him (42
c.c); the notification will be executed through deposit at the clerk of the court.
ARTICLE.252
NOTIFICATION OF THE PETITION

14
The first paragraph of the art.250 c.p.c. it has been modified the text according in the same article enforce of the
law n.70 of the October, 1975.
 62

The petitioner should to his care notify the petition to the part or to the parts
against whom is proposed (95).
ARTICLE.253
DEPOSIT OF THE PETITION
The petition, to a penalty of unproceedable should be deposited in the clerk’s
office of the court that has pronounced the appealed sentence. To it should be
attached authentic copy of the appealed sentence, the power or attorney released to
the lawyer, the receipt proving the deposit of the due tax or the decree of admission
of the petitioner part to the free advocacy (defense).
ARTICLE.254
TRANSMISSION OF THE FILE.
The clerk of the court that has received the petition with the documents of which to
the preceding article should transmit to the related office immediately to the clerk
of the Supreme Court.
ARTICLE.255
COUNTER PETITION
The part against whom the petition is directed can propose counter-petition
notifying it to the petitioner within 10 days from the receiving of the notification of
the principal petition.
The counter petition should be written according the norms dictated to article.250;
it should be deposited in the clerk’s office of the court within 10 days from the
notification.
In the lack of counter petition the part that has not presented it is only admitted to
the oral discussion.
ARTICLE.256
SUSPENSION OF THE EXECUTION
The petition to the Supreme Court not suspends the execution of the sentence.
However, the Supreme Court and the same court that has issued the sentence for
Justified reasons, heard the parts and disposed if the case a caution can temporarily
suspend the execution.
 63

ARTICLE.257
FIXATION OF THE AUDIENCE FOR THE DISCUSSION OF THE
PETITION AND COMMUNICATION TO THE PARTS
The president of the Court fixes the audience for the discussion of the petition and
the Clerk of the Court gives it communication to the parts at least before 10 days.
ARTICLE.258
RELATION ON THE CASE AND DISCUSSION
To the fixed audience reporter judge nominated from the president refers on the
case; hence the president admits the parts to illustrate the reasons of the petition
and of the counter petition.
Ended the discussion the court deliberate in the council room the sentence, except
that the president retains appropriate postponing the decision to a future audience.
ARTICLE.259
DECISION OF THE SUPREME COURT
If takes place the cases foreseen from the law (249), the court declares
inadmissible or un proceedable the petition confiscates the deposit and provide on
the expenses. The petition declared inadmissible (249, 250) or unproceedible (253)
cannot be reproposed.
If the court retains that the case could not be proposed or the process continued
erase the appealed sentence.
If rejects the petition condemn the petitioner to the loss of the deposit and to the
expenses, except that retains appropriate to compensate these lastly (62, 63).
If accepts the petition, nullifies the sentence appealed and decides definitely in the
merit if the case is sufficiently instructed; in the contrary the court can directly
submit to the exam the facts of the case and disposes also instructory means, or
else, only in case of absolute necessity, can send the case to the tribunal that has
pronounced the sentence disposing that the new treatment be trusted to a different
judge (262-264).

ARTICLE :260
 64

DEPOSIT OF THE SENTENCE AND NOTIFICATION

The sentence will be deposited in the clerk's office of the court; on the event of
deposit the clerk gives notice to the interested parts through notification; the file
with all the acts is sent back to the court that has pronounced the sentence appealed
together with a copy of the dispositive of the sentence of the supreme court that
should be noted to the edge of the sentence appealed.
ARTICLE:261
RENOUNCE
Before the start of the report on the case of which to the art.258 the parts can
respectively renounce to the petition (250) or counter petition (255).
ARTICLE:262
RESUMPTION OF THE CASE
Within a year from the publication of the sentence of the supreme court (93) each
of the parts can, in case of postponement to the court of the sentence appealed,
resume before to this the case.
In case of extinction of the case the sentence of the supreme court preserves its
binding efficacy
ARTICLE:263
PROCEEDING IN CASE OF POSTPONEMENT
In the process of postponement continued before the court that issued the appealed
sentence, the parts reassume the same procedural position that they had in the first
process.
ARTICLE:264
PRINCIPLES OF RIGHT ENOUNCED FROM THE SUPREME COURT
The judge of postponement should comply to the principles of law enunciated from
the supreme court.
ARTICLE:265
JURISDICTION AND COMPETENCE REGULATION
 65

The same modality of which the articles that precede is observed for the regulation
of competence and jurisdiction (26).

CHAPTER: IV
REVOCATION
ARTICLE:266
CASES OF REVOCATION
The sentences passed in adjudicated (222) can be appealed for revocation in the
following cases:
1) If are effect of Fraud of one of the parts in damage of the others;
2) If it is adjudicated on basis of prove recognized and declared false after
the sentence;
3) If after the sentence have been found decisive documents that the part
could not produce for reason of force major or for culpa of the adversary;
4) If the sentence is an effect of an error of fact resulting from the acts or
documents of the case;
5) If the sentence is an effect of fraud of the judge ascertained with sentence
passed in adjudicated (222).
ARTICLE:267
REVOCATION PROPOSABLE FROM THE ATTORNEY GENERAL
In the cases in which is mandatory the intervention of the Attorney General
(47,113,306,312/3); this has the power to appeal the sentence for revocation in the
following cases:
1) When he has not participated to the process (113);
2) When there is clear collusion15 between the parts to fraud the law.
ARTICLE:268
PROPOSITION OF THE REQUEST
The revocation is proposed with citation before the same judge that has
pronounced the appealed sentence.

15
fraudulent
 66

The citation should contain the reason of the revocation and the related prove to
the demonstration of one of the cases foreseen in the art.266 cpc the citation should
be undersigned from a lawyer provided with special power of attorney and
accompanied from the receipt of the payment of the deposit of the due tax.
ARTICLE:269
REMITIAL TO THE NORMS DICTATED FOR THE
PROCEEDING OF FIRST GRADE
Is observed, in as much not incompatible, the dispositions dictated for the
proceeding of first grade.
ARTICLE:270
SUSPENTION OF THE EXECUTION
The judge of the revocation can upon request of part, heard the opposite part and
disposes eventually a bail, suspends the execution of the sentence appealed with
revocation.
The judge of the revocation if declares inadmissible the request or rejects for
baseless of the reasons, condemn the plaintiff to the loss of deposit and to the
expenses.
If instead accept the revocation, order the restitution of the deposit and decides in
the merit of the case, postponing the effect of the sentence appealed.
ARTICLE:271
APPEAL OF THE SENTENCE OF REVOCATION
The sentence pronounced in the process of revocation cannot be appealed for
revocation, however it is subject to the other means of appeal if is not passed the
terms (223).

THIRD BOOK
SPECIAL PROCEEDING
TITLE:I
SUMMARY PROCEEDING
 67

ARTICLE:272
EXECUTIVE TITLE
On request of whom is creditor of a liquid sum of money or of a determined
quantity of things substitutable or for he has right to hand over of a determined
mobile thing the competent judge pronounce injunctive of payment or of hand
over:
1) If the right is based on written prove (273-274);
2) If the credit regards honorary or reimburse of expenses made from
lawyers, attorneys, clerks, judiciary officers of from any other has
performed his opera in occasion of a process (42 c.p.c);
1) If the credit regards honorary for professional performance16.
The injunction cannot be pronounced if the notification to the debtor should
happen outside of the territory of the republic.
ARTICLE:273
WRITTEN PROVE
Are written prove suitable in view of the preceding article the bills, the unilateral
promise, the private writhing (391), the extract of banking nevertheless the extracts
of written accountants duly endorsed and marked.

ARTICLE:274
WRITTEN PROVE FOR STATE CREDIT AND THE PUBLIC ENTITY
For credits of the state or public entity are suitable prove the books or the registers
of the public administration with the attestation of regular estate. Are also suitable
prove the ascertainment executed from the inspector of the labor (110.n.10, 112,
138 labor code).
ARTICLE:275
FEE OF THE EXPENSES

16
For the liquidation of the honorary and expense of the lawyers, see law n.85 of 21 October, 1975- law on the
cooperative of the lawyers, (in appendix 12).
 68

In the cases foreseen from the numbers 2 and 3 of the article 272 the request
should be accompanied from the fee of the expenses and of the performance.
The judge that accepts the request, should verify that the fee of the expenses is
conform to the professional rate17.
ARTICLE:276
COMPETENT JUDGE
For the proceeding of injunction is competent the judge that would be
competent for the request in ordinary way (14).
ARTICLE:277
CONTENT OF THE REQUEST OF INJUNCTION
The request of injunction should contain the requirement of which to the
article.119, and be accompanied from the documents based on its ground.
ARTICLE:278
INTEGRATION OF THE REQUEST
The judge who retains insufficiently proved the request can ask to whom has
proposed it the integration of the prove or can, in lack reject the request of
injunction.
The rejection not precludes the reproduction of the request either for appeal or
in ordinary way.
ARTICLE:279
FOR THE PROVISION AND TERMS FOR THE PERFORMANCE
If subsist the conditions provided from the article.272 and the prove is sufficient
the judge with decree order to the other part to pay or to hand over the request
things within the terms of ten days, informing that in the same terms can be
done opposition (281) and that in lack of opposition will be proceeded to the
forced execution (338 s.s).

17
See for the liquidation of the honorary the note to the art.272.
 69

For serious reasons the terms can be reduced to the half; in the decree will be
liquidated also the expenses of the proceeding 18 and will be ordered the
payment.
ARTICLE: 280
AUTHORIZATION OF THE EXECUTION
If the credit is founded on bill of exchange (104) of bill of exchange bank
allowance (cheque) or act received from notary, the judge orders to the debtor to
pay without delay, authorizing in lack the forced execution, and fixing a term to
only end of the opposition (281).
Copy of the request and of the decree will be notified by the part to the debtor, if
the notification will not be executed within the term of thirty days the decree
become Inefficacy; but the request can be reproposed.
ARTICLE:281
WAY OF PROPOSING THE OPPOSITION
The opposition is proposed before to the judge that has issued the decree with act
of citation, observing the dispositions on the introduction of the case (117, 11 s.s).
In the case of opposition, the opponent become plaintiff and the part that has
proposed the request and has obtained the decree of injection is defendant.
Is observed the dispositions dictated for the ordinary process, but the terms of
appearance are reduced to half of it (121).
ARTICLE:282
LACK OF OPPOSITION
If has not been done opposition in the established term (279) or if the opponent not
be present to the audience the judge declares executive the decree (285), after have
ascertained the regularity of the notification (115).
When the decree has been declared executive cannot be any more proposed
opposition.
ARTICLE:283

18
See the note to the art.272
 70

CONCESSION OF THE PROVISIONAL EXECUTION

Except the cases provided from the art 280 upon request of part can be always
allowed from the judge the provisional execution with or without deposit of bail.
Likewise, to request of the opponent the judge can suspend the provisional
execution.
ARTICLE:284
EXECUTIVE EFFICACY OF THE DECREE
If the opposition is rejected the decree that is not already provided acquire
executive efficacy (338, lett “a”).
If the opposition is accepted only in part the executive title is constituted from the
sentence that concludes the proceeding.

ARTICLE.285
EFFICACY OF THE INJUNCTIVE DECREE DECLARED
EXECUTIVE.
The decrees declared executive constitute title for the assignment of immobile
foreseen from the civil code (875 c.c).

CHAPTER II
VALIDATION OF EVICTION
ARTICLE. 286
INTIMIDATION EVICTION FOR DELAY
In case of lack of payment of the rent to the established expiry date the lessor can
intimidate to the conductor the licence for eviction for overdue payment even
before the term of contract.
ARTICLE:287
NOTIFICATION
 71

The intimidation of eviction for overdue payment should be notified to the

conductor personally together with the citation to appear in process.
ARTICLE:288
Competent judge
The competence of the judge in front of whom the defaulting conductor should be
dependent is determined on bases to the rent established for the entire duration of
the contract (11).
ART. 289
FORM OF THE CITATION TO APPEAR
The form of citation to appear is the same to that proscribed for the interdiction of
the process of the first grade (117, 119 ss).
ARTICLE.290
LACK OF APPEARANCE OF THE LESSOR
If the lessor isn’t present to the audience fixed from the judge for the appearance
cease the effects of the intimation.

If the conductor not appear or appearing not opposes the judge, validates eviction
and disposes with ordinance which in the edge to the citation be affixed the
formula executive.
In the same ordinance the judge, upon request of the lessor can order the payment
of fees expired.
Art.291
Opposition of the conductor
If the conductor appears and opposes to the payment without founded exceptions
the judge, reserving for himself to decide on the intimation of eviction, order the
prosecution of the process for the decision of merit in the forms of the process of
first grade.
ART.292
POSTPONEMENT TO THE SPECIAL LAWS ON THE RENT
 72

The effective release of the real estate rent, after intimation of the eviction notice,
is subordinated to the dispositions of the special laws on the rent19.

CHAPTER III
PROTECTIVE PROCEEDING
SECTION I
SEQUESTRATION
ART.293
AUTHORIZATION OF THE JUDICIAL SEQUESTRATION
The judge can authorize the judicial sequestration (634-641 c.c):
1) Of mobile or immobile things or of enterprise when it is controversial the
Property and is appropriate provide to their custody or to their temporary
administration
2) Of books, registers, documents, samples and of any other thing
appropriate to prove a controversial right, when is appropriate provide to
their temporary custody.

ARTICLE.294
CONSERVATIVE SEQUESTRATION
The judge, upon request of the Creditor that has grounded reason to lose the
guarantee of the proper credit, can authorize the conservative sequestration of
mobile goods and immobile of the debtor or of the sum to him owed in the limits in
which the law permits him the distrain (372,364,379).
ARTICLE.295
SEQUESTRATION BEFORE THE CASE AND SEQUESTRATION
DURING THE CASE

19
See appendix 24
 73

The conservative sequestration can be requested either before to the case or in the
course of a case already initiated.
In the first case the judge if accepts the request provides with decree and fixes an
audience for the convalidation of the provision ordering the appearance of the
requirement and of the debtor.
ARTICLE:296
BAIL
Either the proceeding that authorize the sequestration or in the subsequent
proceeding of convalidation the judge can dispose that the requirent deposits
adequate bail.
In the same provisions the judge dispose for the custody of the goods sequestrated
(42).
ARTICLE:297
INEFFICIENCE OF THE PROVISION THAT AUTHORIZE THE
SEQUESTRATION
The provision that authorizes the sequestration lose efficacy if is not executed with
in thirty days from its pronunciation.
ARTICLE:298
REVOCATION OF THE CONSERVATIVE SEQUESTRATION
The debtor can obtain the revocation of the sequestration paying adequate bail for
the amount of the credit and of the related expenses.
ARTICLE:299
SELL OF THE DETERIORABLE
If the sequestered things (293,294) are subject to deterioration the judge can
dispose the sell and price obtained remain under sequestration in place of the
things sold.

SECTION II
PREVENTIVE ASCERTAINMENT
 74

ARTICLE. 300
PREVENTIVE ASSUMPTION OF PROVE
Who has a good reason to retrain that it is missing prove that may be necessary in a
case to propose it in a future, can ask to the judge that disposes the acquisition.
ARTICLE. 301
REQUEST
The request is proposed to the judge that would be competent for the case to
propose; the acquisition will happen in the ways and with the forms foreseen for
the collecting of the proves in process and it can be subsequently be prevailed in
the case after that this will be proposed.

SECTION III
URGENT PROCEEDING AND POSSESORS
ARTICLE. 302
URGENT PROVISIONS
Who has good reason to be afraid that during the necessary time to prevail his
rights in ordinary way, this is threatened from an eminent danger and irreparable
can request to the judge all those urgent provisions that appear adequate to ensure
provisionally the effects of the decision that will follow on the merit.
ARTICLE. 303
COMPETENT JUDGE
The request of which to the preceding article should be directed to the judge that
would be competent for the case in merit.
The judge, if retains founded the reason, heard if required the opposite part,
provide the provisions requested fixing the peremtory term within which should be
initiated the process of merit, if this will not be initiated in said term the provision
admitted become inefficient.
ARTICLE. 304
 75

POSSESSORY PROCEEDING
The same procedure of which to the articles that precede can be followed for
possessory actions intending to reintegration or to the maintenance of the
possessors of immobile thing, or to the report of new opera provided from the
art.770 of the civil code.

CHPTER IV
INTERDICCTION AND DISABILITYY
ARTICLE. 305
REQUEST OF INTERDICTION OR DISABILITY
The request for interdiction or disability of the persons mentally semi-unsound
(112-116 c.c) is proposed in the regional court of the place where the person
resides.
ARTICLE.306
PROVISIONS OF THE JUDGE
The judge, with intervention of the Attorney General and disposed the necessary
medical ascertainment, provide with decree after has evaluated the effective mental
conditions of the interdict or disability.
ARTICLE. 307
ADMINISTRATION OF THE PROPERTY
With the same provision the judge nominates a tutor or curator and gives any
disposition appropriate to the administration of the Property of the person subject
to the guardianship (47,116-117 c.c).
ARTICLE.308
REVOKE OF THE INTERDICTION AND DISABILITY
With the same formality can be proceeded to the revoke of the interdiction or
disability if are ceased the reasons that had to rouse.
 76

CHAPTER V
ABSENCE AND PRESUMED DEATH
ARTICLE.309
DECLARATION OF ABSENCE OR PRESUMED DEATH
If a person is given as dispersed in sea or in operations of war, or else he
disappeared without giving any more news of him, the judge can to request of part
or of the Attorney General, according the cases issued declaration of absence or
presumed death. Special laws establish the minimum period (45,106 family law) of
disappearance after which can be requested the above-mentioned declaration (16
c.c).
ARTICLE.310
REVOKE OF THE DECLARATION OF ABSENCE AND PRESUMED
DEATH.
Both the declarations are revoked and the effects of them will be ceased if the
person declared absent or presumed death reappear (47, 108 family law).
ARTICLE.311
PUBLICITY OF THE DECLARATION OF ABSENCE AND PRESUMED
DEATH
The declaration of absence or presumed death should be published in the official
bulletin of the republic and be known with other means of publicity.

TITLE II
EFFICACY OF THE FOREIGN SENTENCE

CHAPTER I
DELIBATION
 77

ARARTICLE.312
COMPETENT JUDGE TO THE DELIBATION
Who wants to prevail in the Somali Democratic Republic a foreign sentence should
propose request through citation before to the appeal court in which the sentence
should be carried out (10 judiciary act, 1974).
The declaration of efficacy can be also requested through diplomatic channel.
The subsequent process is compulsory the intervention of the Attorney General
(47,267).
ARTICLE.313
CONCLUSION FOR THE DECLARATION OF EFFICACY
The appeal court before declaring the efficacy of the foreign sentence should
ascertain;
1) That the process has been performed with the observance of the norms on
the current jurisdiction in the country in which it is established;
2) That the parts are regularly constituted in that process;
3) That the sentence be passed in adjudicated;
4) That it is not contrary to another sentence pronounced from Somali judge;
5) That is not pending before a Somali judge other process for the same object
and between the same parts established before passing in adjudicated of
foreign sentence;
6) That the sentence doesn’t contain contrary dispositions to the Somali public
order (28 c.c)20
ARTICLE.314
EFFICACY OF THE FOREIGN SENTENCE
If, on bases of the conditions indicated in the preceding articles, the judge declared
the efficacy of the foreign sentence it becomes executive title in the Somali
Democratic Republic (338).
ARTICLE.315

20
Article 28 c.c limits deriving from the P.O and from good custom
“The application of the foreign law in view of the preceding art in excluded if it is contrary to the P.O or good
custom in Somalia (119 pers.inst.)
 78

ASSUMPTION OF THE MEANS OF PROVE DISPOSED FROM FOREGN

JUDGE
The request of assumption of means of prove from the side of foreign judges
should be directed to the appeal court of the place where the prove should be
assumed (9); the court provide with decree, heard the attorney general (47).

ARTICLE.316
CITATION BEFORE TO FOREIGN AUTHORITY
The notification of citation to appear before to foreign authority or of other acts
came from a foreign state is authorized and executed with the care of the attorney
general of the place in which the notification should be executed.

TITLE III
ARBITRATION
ARTICLE.317
ARBITRATION
The parts can do decide from arbitrators the controversy arisen between them
except those related to indisposed right;
If the parts have unanimously decided to submit to the arbitrators a controversy, no
one of them can apply to the judge before it is initiated the arbitration.
ARTICLE.318
COMPROMISE
The unanimous decision to submit to the arbitrators the resolution of a controversy
should result from a written act and contain the object determined from the
controversy.
ARTICLE.319
CLAUSE OF COMPROMISE
 79

The decision of which to the article that precede, that assume in name of
compromise, can be inserted as clause in a contract, or in a subsequent act in
provision of controversies that may arise in consequence of the same contract.
That clause cannot be included in the collective contracts of labour (7 labor code),
neither can exclude the competence of the ordinary judge from the controversies
related to indispensable rights.
ARTICLE.320
ARBITRATORS
The arbitrators can be one or more, provided be of odd number (318); the
compromise (318) or the related clause (319) relatively inserted in a contract,
should contain the nomination of the arbitrators or establish the number of them
and the way to nominate them.
ARTICLE.321
NOMINATION OF THE ARBITRATORS
When, a norm of the compromise, the arbitrators should be nominated from the
parts, each one of them can notify, through of the judicial officer, to the other the
nomination of the proper arbitrators.
The part that received the notification should in his turn, with in the term of ten
days, notify to the other the proper nominations.
In lack of that, the part that has proceeded to the proper nomination can resort to
the president of the regional court competent per territory requesting the
nomination of the arbitrators of the counterpart.
The president of the regional court, heard the parts and taken vision of the
compromise, provide with ordinance not appellable (129/2).
ARTICLE.322
SUBSTITUTION
If for any reason come to missing all or some of the nominated arbitrators; and are
not foreseen substitution of the compromise, is provided with the procedure of
which to the article that precede.
ARTICLE.323
 80

CAPACITY OF THE ARBITRATORS

The arbitrators should be Somali citizens; not can be arbitrators the minors (44-45),
the interdicted, the disabled (142,114 c.c) (305, 306), the bankrupted and those that
have to undergo the Interdiction from the public offices (101-107 p.c).
ARTICLE.324
ACCEPTANCE AND DUTY OF THE ARBITRATORS
The acceptance to the arbitrators should be drafted in written or in subscription of
the compromise (318).
The arbitrators should deposit the arbitration sentence in the term established in the
art.331; in lack of that, and in case of waiver to the assignment without justified
reason are retained to the remedy of the damages.
ARTICLE.325
RIGHTS OF THE ARBITRATORS
The arbitrators have right from the reimbursement of the expenses sustained and to
the honorary for the opera rendered in the measure established in the compromise
and accepted from the parts.
ARTICLE.326
RECUSAL AND ABSTENTION
Is applied to the arbitrators the disposition on the recusal and the abstention
established for the ordinary judges (29-30), but the part cannot recuse the arbitrator
nominated by himself.

ARTICLE.327
ARBITRAL PROCEEDGING
- The arbitrators, the course of proceeding, have the same powers attributed to
the ordinary judge for what regard the interrogatory of the parts (165-167),
the exam of the testimonies (176-183) and the acquisition of the prove, in
that their activity should, as it is possible. Observe the dispositions of law in
civil procedure matter.
 81

- The arbitrators can however concede confiscation nor other protective

provisions (293, 300, 302)
ARTICLE.328
ARBITRAL SENTENCE
The arbitrators are retained to deliberate their sentence within 90 days from the
nomination (321); if are not been nominated at the same time the term runs from
the date of the last nomination.
The term, upon agreement of the parts, can be postponed till to the double.
If within the term established or postponed the arbitrators not reach a decision their
nomination expire and the parts are free to proceed to another arbitrator or to refer
to the judge the resolution of the controversy
ARTICLE.329
MOTIVATION OF THE ARBITRAL SENTENCE
The arbitral sentence can be motivated either according law or according equity,
even if the parts not have expressly conferred to the arbitrators that option.
It however should be conform to the criteria of decision specified in the art.1, n.2.
of the civil code.
ARTICLE. 330
FORM AND CONTENT OF THE ARBITRAL SENTENCE
The arbitral sentence, should be drawn up for written and contain:
1) The indication of the parts;
2) The exposition of the facts and of the reasons;
3) The undersigning of all the arbitrators and the indication of the respective
nominations;
4) The date and the place in which has been deliberated.

ARTICLE. 331
DEPOSIT OF THE SENTENCE
Within 10 days of its deliberation the sentence, to the care of the arbitrators, should
be deposited to the clerk’s office of the regional court of the place in which it has
been deliberated (8). The president of the regional court, ascertained the regularity
 82

of the deposit, attributes with his decree executive efficacy to the arbitral sentence
(338); that decree should be immediately succeeding to the deposit.
ARTICLE. 332
APPEAL
The arbitral sentence can be challenged to the court of appeal competent per
territory (9) only for the following reasons:
1. Nullity for lack of one of the requirements indicated in the art.330;
2. Inobservance of the term indicated in the art.328;
3. Revocation for one of the reasons indicated in the art. 266.
The appeal should be proposed within the term of thirty days from the deposit of
the sentence (331).
The president of the appeal court can, upon request of the part that has proposed
the appeal, suspend the execution.
ARTICLE. 333
EXTRAJUDICIAL CONCILIATION
The extrajudicial conciliation concluded between the parts spontaneously or
through the representatives of the elders of the city, villages and neighborhoods
acquire validity and executive efficacy through registration in the clerk’s office of
district tribunal of the place in which the conciliation is occurred (7).

TITLE IV
PROCEEDING IN COUNCIL ROOM

ARTICLE.334
FORM OF THE REQUEST AND OF THE PROVISION
The provisions not litigious, that should be pronounced in council room are
requested with appeal to the competent judge and have form of decree except that
the law disposes otherwise (91).
ARTICLE. 335
PROVISION
The judge assumed the appropriate information and heard when is prescribed the
 83

Attorney General (47), formulate the provision extending the decree in the footage
of the petition.
ARTICLE. 336
OPPOSITIONS OR COMPLAINTS
The decree of which to the article that precedes has executive efficacy if adverse
of it have not been opposite complains from the parts or from the Attorney General
within ten days from its publication through deposit in clerk’s office.
ARTICLE. 337
REVOCABILITY OF THE PROVISSION
The decrees issued to norm of this chapter can be always modified or revocated
from the same judge that has issued.
 84

BOOK FOURTH
PRO CEEDING OF EXECUSION

CHAPTER I
EXECUTIVE TITLE AND PRECEPT

ARTICLE. 338
EXECUTIVE TITLE
The forced executive can take place only in force of an executive title and for a
certain right, liquid and claimable
Are executive titles:
a. The sentence (222) and the other provisions of the judge to which the law
attributes expressly executive efficacy21;
b. The verbals of judicial conciliation and the other verbals of conciliation to which
the law attributes expressly the same efficacy (333, 176/3 maritime code);
c. The bill of exchange as well as the other titles of credit and the acts to which the
law attributes expressly the same efficacy 22-credit titles which has the same
efficacy;
d. The acts received from notary or from other public officer authorized from the law
to receive it, relatively to the obligations of sum of money contained in them.
ARTICLE. 339
ATTESTATION OF EFFICACY
The sentences and the other provisions of the Judiciary Authority, the verbal of
conciliation and the other acts received from other public officer, to be worth as
title for the forced execution, should be provided from the clerk or notary or other
officer of the following formula; “the present title has executive efficacy”.
The signature of the certifying should be valiated from the affixing of the seal of
the clerk, of the notary or of the public officer.

21
Are provisios to which the law attributes execution efficacy.
Ordinance of the penal pecuniary (130/3); injunctive executive decree (284); foreign sentence declared efficacy in
Somalia (314).
22
Are credit tittle having the same executive efficacy of the bill of exchange; the cheques and circular check.
 85

The attestation of which to first comma can be released it only to the part in
favour of which was pronounced the provision or stipulated the obligation or to
his sucessors (724 c.c; 159 pers.inst) with indication in bottom of the person to
whom is has been released.
Of the release of the attestation the clerk, notary or public officer should take note
on the original of the act.
ARTICLE. 340
COPIES IN EXECUTIVE FORM
Cannot be released without rightful reason, more than one attestation, the
interested of executive efficacy to the same part, the subsequent attestation are
requested from part in the cases of which to the letter a) of the art. 338, to the head
of the office that has pronounced the provision or undersigned the verbal of
conciliation, and in the cases in which to the letter d) of the same article to the
competent judge in which the circunascription the act has been formulated.
On the request is provided with decree. the clerk, notary or other public officer that
contravenes to the dispositions of the present article is condemned with decree of
the head of the office or of the competent judge according to the norm of second
comma to a pecuniary penalty not exceeding to sh.so 500 /= The decree of
condemn constitute executive title (338).
ARTICLE. 341
EFFICACY AGAINST THE HEIRS
The executive title against the deceased has executive efficacy against his heirs
(159 pers.inst.) from the moment in which is them notified from the creditor.
within a year from the death, the notification can be done to the heirs collectively
and impersonally in the last domicile of the decreased.
ARTICLE. 342
NOTIFICATION OF THE PRECEPT
If the law not disposes otherwise, the forced execution should be preceded from the
notification of the precept to the debtor or to his heirs personally, except in case of
which to second comma of the preceding article.
 86

However, if there is danger in the delay, the judge can authorize with decree of
which to the art. 350, the immediate execution without notification of the precept.
The precept is not however necessary when the forced execution be initiated
directly against the debtor within a year from the date of the verbal of
conciliation, of the sentence and of the other provisions indicated in the letter
a) and b) of the art. 338, or of the date of expiry of the term for the performance of
the obligations of which to the letter c) and d) of the same article.

ARTICLE. 343
FORM OF THE PRECEPT
The precept consists in the order of performing to the obligation resulting from
the executive title (338) within a term not less of ten days, with warning that in
lacking will be proceeded to the forced execution (350 ss).
The precept should contain, to a penalty of nullity, the indication of the parts and of
their domicile (43 c.c), of the extremes of the executive title, of the amount of the
sum of which is requested the payment and of the date of occurring attestation of
executive efficacy from side of the clerk, from the notary or other competent
public officer.
If it concerns of bill of exchange or of other title of credit of which to the letter
c) of the article. 338, the precept should contain the integral transcription of the
same title, with the certification of the judiciary officer that the transcription
exactly corresponds to the original title.
The precept should contain, also the declaration of residence or the election of
domicile of the requesting part the place where has residence the competent judge
for the execution. In lack of that indication, the eventual notifications to the
requesting part are made at the clerk of the same judge.
The precept should be undersigned from the part or from one his attorney.
ARTICLE. 344
CESSATION OF THE EFFICACY OF THE PRECEPT
 87

The precept become inefficient23 if, in the term of ninety days from its
notification, is not initiated the execution.
ARTICLE. 345
TERM OF THE PRECEPT
Except the cases of which to the comma 2 and 3 of the art. 342, cannot be initiated
the forced execution if not passed the term indicated in the precept.
CHAPTER II
FORCED EXPROPRIATION IN GENERAL
ARTICLE. 346
JUDGE OF THE EXPROPRIATION24
The forced expropriation is directed from the judge of the place in which are
situated the property to expropriate, or else, in cae of expropriation of credits, of
the place where resides the third debtor (16).
Competent is the district judge if the sentence to execute has been pronounced
from a district judge and the regional judge if has been pronounced from a
regional judge.
If the forced expropriation is founded on a different title from the sentence
competent is the district judge or the regional judge, according that the value of
the title is not exceeding or exceeds to So.Sh. 3.000/= (7,8)
ARTICLE. 347
FIXATION OF THE AUDIENCE
When the law require or the judge retain necessary that the parts and eventually
others interested be heard, the same judge fixes with decree the audience in which
the distraint creditor, the intervened creditors (357), the debtors, and eventually
the other interested should appear before him.
The decree is communicated to the parts from the clerk.

23
The art. 181 of maritime code establish that the term of the precept become inefficient passed the thirty days
without that being proceeded to the distraint.
24
See art.51 of the law n.76 0f 7 December, 1972: law on the mandatory insurance against the accidents on labour
and the professional disease.
 88

If results or appears probable that any of the parts is not appeared for reasons
independent from his willing, the judge fixes a new audience of which the clerk
gives communication to the parts not appeared.
ARTICLE. 348
FORM OF THE REQUEST AND OF THE ANSWERS
The request and application if the law not disposes otherwise, are proposed orally
to the judge when they come to the audience, or with petition to be deposited in
clerk in the other cases.
ARTICLE. 349
FORM OF THE PROVISIONS
Except that the law not disposes otherwise (406, 438/4), the provisions of the
judge are given with ordinance (91), that can be from the same judge modified or
revoked till not has had execution.
For the ordinance of the judge is observed the dispositions of this code, when it is
applicable (128-129).
ARTICLE. 350
START OF THE EXPROPRIATION25
Except the hypothesis for seen in the art. 372 c.p.c, the forced expropriation takes
place with the expropriation. The authorization to the expropriation is requested
from the creditor to the judge through petition deposited in the office of the clerk
together with the executive title (338) and to the eventual precept (342-343).
In the case in which has been notified the precept, the petition cannot be presented
if not passed the term of which to the first comma of the art. 343 cpc.
The judge, ascertained the formal validity of the title and of the eventual precept,
authorize with decree the expropriation.
ARTICLE. 351
FILE OF THE EXPROPRIATION

25
Should be transcript the judicial request related to the distraint for the effects disposed of the art.941 c.c
 89

The clerk, to the act of the presentation of the request of authorization to

expropriation, forms for each proceeding of expropriation a dossier (file)26 in
which are inserted all the acts performed from the judge, from the clerk and from
the judiciary officer, and the acts and documents deposited from the parts and
from the eventual interested.
ARTICLE. 352
SEQUESTRATION
The sequestration consists in an injunction to the debtor to abstain from any act
directed to substract to the guarantee of the credit the assets that are subjected to
the expropriation and the fruits of them.

ARTICLE. 353
PAYMENT IN THE HANDS OF THE JUDICIARY OFFICER
The debtor can avoid the sequestration paying to the judiciary officer the sum for
which is proceeded and the amount of expenses with the charge of paying them to
the creditor, though with the reserve to repeat the sum paid whenever not owed.
ARTICLE. 354
CONVERSION OF THE SEQUESTRATION
In any time before to sale, the debtor can ask to the judge to substitute to the
sequestered a sum of money equal to the amount of the expenses and of the credits
of distrainer creditor and of the intervened creditors (357).
The judge determine with ordinance, heard the parts, the sum that should be
substituted to the asset sequestrated; and disposes that the sequestrated thing be
liberated from the sequestration, and that the paid sum from the debtor be subject
in their substitution.
ARTICLE. 355
REDUCTION OF THE SEQUESTRATION
When the value of the assets sequestrated is greater to the amount of the expenses
and of the credits of which to the preceding article, the judge, upon request of the

26
Dossier= a file containing detailed information.
 90

debtor or even as office, heard the distrained creditor and the intervened creditors,
can dispose the reduction of the sequestration.
ARTICLE. 356
NOTICE OF WRITTEN CREDITORS
The distraining creditor should within five days from the occurring sequestration,
notify to the creditors, that on sequestered assets boast of a right of pre-emption
(847, 884, 903, 918) resulting from public registries a notice containing the
indication of the distraining creditor, of the credit for which is proceeding, of the
title and of the assets seized.
Whenever results that an asset subjected to the distraint has been previously
executed a conservative sequestration (294), the notice of which to the preceding
comma should be notified also to the sequestraint.
The original of the notice should be deposited in the clerk’s office of the judge
within five days of the happening notification. In lack of the prove of the
notification, the judge cannot provide to the sale.
ARTICLE. 357
INTERVENTION
Can intervene in the execution, besides the indicated creditors in the preceding
article, also the other creditors, though not privileged.
The intervention is done with petition to the judge, containing the indication of
the credit, of the title of it, the declaration of residence and the election of
domicile (43 c.c) in the place in which the judge has head office (16). To the
petition should be attached the titles proving the credit.
ARTICLE. 358
EFFECT OF THE INTERVENTION
The intervention gives right to participate to the expropriation or to the
distribution of the sum obtained and, if the intervener is provided of executive
title (338), gives also right to substitute himself in the expropriation to the creditor
distrainer in the case in which this renders inactive.
ARTICLE. 359
CUMULUS OF THE MEANS OF EXPROPRIATION
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The creditor can adopt cumulatively of the different means of force expropriation
forseen from the law but the debtor can request to the judge, who decides with
ordinance not appelleble, to be determined the means of expropriation.
CHAPTER III
MOBILE EXPROPRIATION OF THE DEBTOR

ARTICLE. 360

INDICATION OF THE ASSETS OF THE DEBTOR

The creditor that wants proceed to mobile expropriation, should indicate even
briefly, in the recourse of which to the article. 348 which assets of property of the
debtor intends to be subject to the distraint and the place where they are situated.
The judge, in the authorization the distraint in view of article, 350, sends for
execution to the judiciary officer assigned to his office, or else to a judiciary
police officer if the location where should take place the execution is different
from the place of the office.
Copy of the decree is handed over for that purpose from the clerk to the judiciary
officer that should proceed.
ARTICLE. 361
RESEARCH OF THE ASSETS TO DISTRAIN
The judiciary officer, equipped with the copy of the decree of which to the
preceding article, can search the assets to distraint in the home of the debtor and in
the other places to him belonged.
Can also research on the person of debtor, observing the appropriate caution to
respect dignity.
Can at last research the assets to distrain that are not situated in places not
appertaining to the debtor, but of which he can directly dispose.
When appear difficulties, the judiciary officer provides according the
circumstances, requesting, when required, the assistance of the public force.
The distrained creditor has right to assist to the distraint.
ARTICLE. 362
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MOVEABLE THINGS ABSOLUTELY UNDISTRAINTABLE

In addition to the things declared undistraintable from special dispositions of law27,
cannot be distainted:
a. The sacre things and those that serve to the exercise of the worship;
b. The dresses, the underwear, the beds, the tools of house and of kitchen, since
indispensable to the debtor and to the persons of his family with him co habitants;
c. The edibles and the combustibles necessary for one month for maintenance of the
debtor and to the persons indicated in the proceeding number;
d. The instruments, the objects and the books indispensable for the exercise of the
profession, of the arts or of the profession of the debtor;
e. The army and the objects that the debtor has the duty to preserve for the
performance of public service;
f. The decorations to the value, the books, the registers and usually the family written,
except that form part of a collection.
The patrimonial assets and state property cannot be in any case subjected to
distraint nor to sequestration28.
ARTICLE. 363
MOBILE THINGS RELATIVELY APPELLEABLE
The things that the property owner of a real estate retains for the service or the
farming of the same can be distrainted seperately from the immobile only in lack
of other mobiles, however the judge, on debtor’s request and heard the creditor,
can exclude from the distraint, with ordinance not appelleable, those among the
above indicated things that are necessary use for the farming of the property, can
also permits the use, though distrained, with the appropriate caution for their
conservation and reconstruction (371/2).
ARTICLE. 36429
Things distrainable in particular circumstance the fruits not yet harvested or
separated from the soil cannot be distrained separately from the immobile to
which they access if not in the last six weeks prior to the ordinary time of their

27
Edibles- any substance that can be used as food (commestibile).
28
For the forced execution of the ships, boats and of the courteous.
- Courteous-galante
29
For the fiscal effect, the fiscal administration can distrain the fruits of the debtor’s land before the lands being
rented (art.99, comma 2 of unique test of the law on the direct taxation).
 93

maturation, except that the distrained creditor assumes the major expenses of the
custody.
ARTICLE. 366
FORMS OF DISTRAINT
The judiciary officer writes of his operations verbal process in which gives act of
the injunction of which to the art. 352, describes the things distrained determining
approximately the value and does report of the disposition given for the custody
and the conservation of the things distrained, to norm of the following article.
If the debtor is not present, the injunction is addressed to a person of family or
employed to the house, to the office or to the enterprise (97), unless not minor of
fourteen years and not obviously incapable, to whom will be given a notice of the
same injunction for the debtor.
In lack of the person, the J.O. affixes that notice to the door of the immobile in
which he executed the distraine. The verbal process, together with the copy of the
decree indicating the authorization.
ARTICLE. 367
CUSTODY OF THE MOBIL GOODS DISTRAINED
The judiciary officer distrained should hand over to the clerk the money, the
credit titles and the valuable objects striked from the distraine.
For the conservation of the other things the judiciary officer provides, transporting
it in a place of public deposit, or intrusting to a custody, that can be even one of
the parts, whenever is not possible intrust the custody to different person and the
opposite part present doesn’t oppose (42-44).
The custodian assumes the duty to store up the distrained mobiles to disposition of
the justice and cannot use without authorization of the judge (261-262,285 p.c).
ARTICLE. 368
TIME OF THE DISTRAIN
The distraine cannot be executed in the days declared festival by law30, neither
before of the hours 6 and after the hours 18, except that not been given

30
For the festival days, see art.86 of labor code.
 94

authorization from the judge. The distraine started in the hours prescribed can be
proceeded till to its accomplishment.
ARTICLE. 369
REQUEST OF SUCCESSIVE DISTRAINE
Whenever the recourse of which to the art. 350 be direct against person that
results having suffered other distraine still effective, the judge limits his
authorization to the remaining goods of the debtor, if were indicated.
In case negative, the request will be attached to the file (351) formed on basis to
the first distraine and has effect of an intervention in regard to goods striked from
that distraine.
ARTICLE. 370
PROVISION FOR THE ASSIGNMENT AND FOR THE
AUTHORIZATION OF THE SALE
Deposited The verbal of distraint, The Judge fixes with decree the audience of
appearance of distrainor creditor, of the debtor of the intervened Creditors (357)
and the others eventually interested.
The clerk gives notice of the fixation of the audience to the parts through a notice
of the clerk's office.
To the audience the pants Can do observations around the time and the modality
of the sale. If concur just motives, the judge can allow to the debtor the payment
in instalment of the debtor or a term to fulfil.
On request of the preceding creditor or of other intervened creditor provided of
executive title the Judge disposes the sale in public establishing the day, the hour,
the locality and the basic price.
The mobile sale is executed from the judiciary officer. If this is impeded the judge
can delegate an officer of judiciary police.
ARTICLE. 371
SALE OF PENDING FRUITS
The sale of pending fruits cannot be disposed if non for their time of maturation,
except different local customs.
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Of the things indicated in the art. 363 the judge can differ the sale for the period
that retains necessary to satisfy the requirements of agricultural firm.
ARTICLE. 372
SALE OF THE PAWN
Except the special dispositions of the civil code (885-917 cc), for the expropriation
of the things given in pawn31 is followed the norms of the present code, but the
expropriation should be always preceded from the notification of the precept (342).
The sale can be requested without that is been preceded from the distrain; in that
case the creditor should present to the judge application of sale within the term of
efficacy of the precept.
ARTICLE. 373
PUBLICATION OF THE ORDINANCE OF SALE
The ordinance of sale should be affixed as extract, to the care of the clerk, at least
ten days before the day fixed for the sale, to the board of the judiciary officer and
publiced, in the same term, in a daily newspaper for national spread.
The judge, where retains it suitable, can dispose other forms of publicity. The
publicity is made on the expenses of part.
ARTICLE. 374
MODALITY OF THE SALE
The appointee of the Sale should above all do, in competition with the custodian,
the recognition of the objects to sell, contrasting it with the description contained
in verbal process of distrain.
The things to sell are offered singularly separated Cotta, according the
Convenience, on the basis of the fixed price from The Judge.
The adjudicator is retained to pay immediately the offered price and the amount of
the expenses of registration of the verbal; in lack, his offer is considered null and
remain valid the preceding major offer.

31
Pawn-pan
 96

Of the operations performed the entrusted of the sale writes verbal that should be
immediately deposited in the clerk of the judge together with the sum received
from the sale and with that necessary for the registration of the verbal.
The clerk takes care the registration of the verbal.
ARTICLE. 375
NEW INCANTATION
when a thing put to the incantation remain unsold, the clerk gives notice to the
judge who heard when required the parts, fixes a new incantation in which is
admitted any offer.
The golden objects and of silver cannot in any case be sold for a price less than to
the intrinsic value.
ARTICLE. 376
DISTRIBUTION OF THE SUM OBTAINED
Taken place the deposit of the verbal of sale and of the sum obtained, the judge
fixes with decree the audience to proceed to the distribution of the sum itself.
Of the audience the clerk gives timely communication to the instant creditor, to the
excluded debtor and to the other parts intervened.
In the audience the judge, if there is only a creditor, disposes in favor of the same
the payment of what expects him. In case of plurality of creditors, the sum received
is distributed among them from the judge, taking in account to eventual legitimate
cause of pre-emption (847,884,903,918 c.c).
If, after that all creditors have been satisfied, remain some money the judge
disposes the consignment to the excluded debtor.
In the case that arise controversy between the parts around the existence of rights
of pre-emption, the judge after a summary instruction in the ordinary forms, decide
with sentence.
The judge can proceed to the distribution of the sum received not controversial,
except that not retains suitable suspend totally the distribution to the resolution of
the controversy.
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CHAPTER IV
ESPROPRIATION FROM THIRDS
ARTICLE. 377
FORM OF THE DISTRAINT
The creditor that intends subject to distrain credits of the debtor toward thirds or
things of the debtor that are in possess of thirds that should, in the petition of which
to the art.350, the things and the sum on which intends to proceed.
The judge, in the authorization with decree the distraint toward the third of the
things and of the sum indicated from the recurrent, summons to third to not dispose
of the same without his order.
With the same decree order the appearance of the instant creditor, of the debtor and
of the third before to him, in order that the third does the declaration of which to
the art. 381 in contradictory with the other parts.
Copy of the petition and of the decree is notified to the care of the clerk, to the
debtor and to the third, at least ten days before of the fixed audience, in the same
term the clerk gives communication of the decree to the requirement creditor.
ARTICLE. 378
PAWN OR MORTGAGE FOR GUARANTEE OF DISTRAINED CREDIT
If the distrained credit is guaranteed from pawn (885cc), who detains the thing
given in pawn is retained not execute the restoration without order of the judge.
If the distrained credit is guaranteed from mortgage (821 cc) the act of distraint
should be annotated, to the will of the applicant creditor, in the real state registries.
ARTICLE. 379
DISPUTABLE CREDITS
Cannot be distrained the foodstuff, except that for reason of alimentary (15 c.c.; 74
of family law), and always with the authorization of the judge and for the part
from, him determined in the decree of authorization.
Cannot be distrained credits having per object subsidy owed for maternity, diseases
and funerals from insurance bank, from assistant enterprise or from beneficiary
institute.
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The recompense32, the other indemnity and the assignment of quiescence of the
workers dependent from privates, from the state and from public enterprises can
be.
a. Up to the concurrency of one third, evaluated to the net of the deduction, if is
proceeded for reasons of alimentaries;
b. Up to the concurrency of a quarter, evaluated to the net of the deduction, in the
other cases (79 labor code)
The distraint, for the simultaneous competition of the reasons indicated in the
preceding paragraphs, not can in any case strike a quota higher to a third.
ARTICLE. 380
DUTY OF THE THIRD
From the day in which it has been notified to him the act of which to the article
377, the third is subjected, relatively to the things and to the sum of him owed, to
the duties that the law imposes to the custodian (367).
ARTICLE. 381
DECLARATION OF THE THIRD
With declaration of the audience, the third personally or through a special attorney,
should specify of which sum is debtor and of which things is he in possess and
when should execute the payment or the delivery.
If it concerns of sum owed of the persons and enterprises indicated in the third
comma of the art. 379, who that venders the declaration should also specify the
amount, evaluated to the net of deducted, of the sum that the dependent receives
continuously in relation to the rapport of occupation or of job, to a little of wages
or labor, a title of salary, recompense salary or retirement.
The third should also specify the confiscations executed beside him. In that case
the judge orders the appearance before him also of the sequestrator.
ARTICLE. 382
LACK DECLARATION OF THE THIRD
If the third not appear to the established audience, the judge postpones the
appearance to other audience, of which the clerk gives communication to the parts

32
Recompense- retribution
 99

through written notice of the clerk. If the third not appear even to this audience or
appearing refuses to render the declaration, the judge can retain the silence as
affirmative declaration (167), and takes with ordinance not appealable the
provisions of which to the articles 386 and 387.
ARTICLE. 383
CONTRADICTED DECLARATION OF THE THIRD
if around to the declarations of the third arise contradictions, the judge suspends
with ordinance the executive process and provides to the instruction and decision
of the case related to the contradictory in the ordinary forms of the process of
cognition (117 ss.).
if in that may be ascertained the existence of the right of the debtor in front of the
third, the judge fixes with ordinance the audience of appearance of the parts to
proceed the execution.
ARTICLE. 384
PLURALITY OF DISTRAINTS
In the case in which the third results to endure other distraint regarding the same
debtor and is still efficacy, is applied the dispositions of which to art. 369.
ARTICLE. 385
The intervention f other creditors is regulated to the norm of the articles 357 and
348. The intervention should take place not further than the fixed audience for the
declaration of the third (381).
ARTICLE. 386
SALE OF THINGS OWED FROM THE THIRD.
If the third declares himself or is declared owner of things belonged to the debtor,
the judge provides for the sale in conformity of the art. 370 and subsequent.
ARTICLE. 387
ASSIGNMENT OF CREDITS
If the third declares himself or is declared debtor of a sum payable immediately or
in term not greater of ninety days or of a sum that will be mature periodically
 100

deriving from the rapport of which to the art. 379, the judge assigns them in
payment, except exaction, to creditors, till to the competition of their credits.
In the cases indicated from the art. 379, the third should give immediately
communication to the judge of the eventual ceasing or interruption of the payments
in favour of the debtor.
ARTICLE. 388
PAWN OR MORTAGAGE FOR GUARANTEE OF THE ASSIGNED
CREDIT.
If the assigned credit is guaranted from pawn (885 c.c), the judge disposes that the
thing given in pawn be enrusted to the conferee (378).
CHAPTER V
IMMOBILE EXPROPRIATION
ARTICLE. 390
Form of the immobile expropriation-
In the case in which the creditor intend to distrain immobile of property of the
debtor, should, in the petition of which to article 350, indicate.
Exactly the same immobile, specifying their nature, the locality where is situated,
the number of the real state register (950 c.c.) if is written, and at least three of
their boundaries.
To the petition should be attached, further to the executive title (338), the eventual
precept (343) and the certificate of the registration (954 c.c) and transcription (950
c.c.) burdened on goods to distrain on.
In the decree that authorize the distraint, the judge does to the debtor the injunction
foreseen from the art. 352.
The distraint happens through notification, to the care of the clerk, of the petition
and decree to the debtor.
As soon as happens the notification, the judiciary officer should deposit in clerk’s
office the original of the act.
ARTICLE. 391
TRANSCRIPTION OF THE IMMOBILE DISTRAINTED
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Within five days from the occurrence deposit of the petition and notified decree to
the sense of the proceeding article, the clerk should provide to the transcription of
that act (828 c.c.), presenting authentic copy of the same, together with the relative
note, to the competent office of the real state registries (939, n.5; 947 c.c.).
ARTICLE. 392
LIMITATION OF THE EXPROPRIATION
If a hypothecary creditor extend the distraint to real state not distrained to his
favor, the judge can apply the disposed of the article. 355, or can suspend the sale
till the completion of that related to the distrained real states.
ARTICLE. 393
CUSTODY OF GOODS DISTRAINED
With the notification of the act of which to the art. 390, the debtor is constituted
custodian of the real states distrained and of all the assessor, including the
pertinence and the fruits, without right to compensation.
Upon request of the distraining creditor or of a intervened creditor, the judge of the
execution, heard the debtor, can nominate custodian a person different from the
debtor (42-44).
In this case awaits to the custodian a compensation that will be established with
decree of the judge.
ARTICLE. 394
WAY OF THE CUSTODY
The debtor and the third nominate custodian should render the account of their
management, to a norm of the art. 412. To them is made forbiddance to give in rent
the distrained real state if not authorized from the judge.
With the authorization of the judge the debtor can continue to live in the distrained
real state, occupying the places strictly necessary to him and to his family.
If the debtor dimostrate of not having other means of support, the judge can also
allow him alimentary allowance on the revenue, in the limit of the strict necessary,
and that till to the moment of the adjucation.
 102

The authorizations of which to the preceding commas are given from the judge
heard the parts and the other interested.
ARTICLE. 395
REQUEST OF SUCESSIVE DISTRAINT
In the case of request of successive real state distraint is applied the norms of
which to the first and second comma of the art. 369.
ARTICLE. 396
CONDITION AND TIME OF THE INTERVENTION
Can intervene, to the art. 357, all those that in confront of the debtor have a credit,
even if is subject to term (268, c.c.) and condition (262 c.c.). the intervention has
not effect if occurs after the audience foreseen from the art. 414.
ARTICLE. 397
PROVISION FOR THE FIXATION OF THE SALE
Deposited the verbal of distraint, the judge fixes with decree the audience for the
appearance of the distrained creditor, of the debtor of the intervened creditors and
of the other interested.
The clerk gives notice of the fixation of the audience to the parts through note of
the clerk.
To the fixed audience the parts can do observations around the time and the
modality of the sale.
If concur just reasons, the judge can allow to the debtor the payment in installment
of debtor a term to fulfill (343/2 c.c.).
Upon request of the proceeding creditor or of other creator provided of executive
title the judge disposes the sale of the real state in public market to the norm of the
following articles.
ARTICLE. 398
CONTENT OF THE PROVISION THAT DISPOSES THE SALE
The judge, heard when require an expert, establishes:
a. If the sale should be done in one or more blocks.
 103

b. The basic price of the auction sale;

c. The day and the hour of the auction sale;
d. The amount of the auction, in measure not less to one tenth of the basic price and
those approximative of the senses of sale;
e. The term within which the related deposits should be fulfilled;
f. The minimum measurement of the increase to bring itself to the offers;
g. The term, not greater to sixty days from the adjudication, within which the price
should be deposited, and the modality of the deposit;
h. The term that should run between the competition of the forms of publicity and the
incantation, as well as the eventual forms of extraordinary publicity.
The ordinance should, to the care of the clerk, be notified to the creditors registered
not appeared, and be communicated according the forms of which to article 397.
ARTICLE. 399
DELEGATION TO PERFORM THE SALE
If a part of the goods distrained is situated in the circumscription of other judge,
with the ordinance that disposes the sale the judge can establish that the incantation
happens, for that part, before to the judge of the place where is situated.
In that case copy of the ordinance is transmitted from the clerk to the delegated
judge to proceed to the sale.
ARTICLE. 400
PERSONS ADMITTED TO THE INCANTATION
Everyone, except the debtor, is admitted to do offer to the incantation provided
having paid the caution and deposited the amount approximative of the expenses of
sale to norm of the ordinance of which to the art. 398.
The offers should be made personally or through of an agent provided of special
power of attorney.
If the offeree not become the highest bidder, the caution and the deposit for the
expenses will not be returned back after the dosing of the incantation.
ARTICLE. 401
MODALITY OF THE INCANTATION
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The incantation take place before to the judge in the hall of the public audience.
The offers are not efficacy if not exceed the basic price or the proceeding offer in
the limit indicated in the conditions of sale.
Soon after each offer the judge does subsequently to a distance of one minute the
one from the other, three invitation to the participants, to the incantation to increase
the same offer.
When is elapsed a minute from the last invitation without that been done a higher
offer, the real state is adjudicated to the last offever.
Each offerer ceases of being compelled for his offer when it is exceeded from
another, even if this is declared null.

ARTICLE. 402
DECLARATION OF RESIDENCE OR ELECTION OF DOMICILE OF
THE HIGHEST BIDDER.
The highest bidder should declare the proper residence or elect domicile (40,43,
c.c), in the place in which has seat the judge that has proceeded to the sale.
In lack the notifications and communications can be done in clerk.
ARTICLE. 403
OFFER AFTER THE INCANTATION
Occurred the incantation, can also be done offer of purchasing within the term of
ten days, but are not efficient if the offered price not exceed of twenty percent that
reached in the incantation.
The offeror should present in the clerk’s office declaration containing the
indication of the price, should lend caution in limit not less to one decimal of the
price offered and deposits the approximative of the further expenses of the sale,
that will be determined from the clerk. Is applied, in confront of the provisional
tenderer of which to the art. 401, the disposition of the last comma of the same
article.
ARTICLE. 404
NEW INCANTATION
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Expired the term for the presentation of the offer in addition of which to the
preceding article, the judge fixes with decree the audience in which should takes
place the new incantation which will be opened on the basic price resulting from
the higher offer.
The clerk gives to the decree publicity in the forms foreseen to the article 397.
The incantation is performed in the forms provided from the art. 401 and the
adjudication to the best offeror is definitive.
ARTICLE. 405
PAYMENT OF THE PRICE
The tenderer should pay the price, in cash of the caution already paid, in term and
in the modality fixed from the ordinance that disposes the sale, to the norm of the
article. 398.

If the immobile has been adjudicated to a creditor for mortgage (821,859/2,865

c.c), or the tenderer has been authorized to undertake himself a guaranteed debt
from mortgage, the judge can limit with decree the payment to the remaining of the
price.
ARTICLE. 406
TRANSFER OF THE GOODS DISTRAINED
Occurred the payment of the price, the judge pronounce decree with which
transfers to the tender the goods expropriated (939 c.c.) repeating the descriptions
contained in the ordinance that disposes the sale, and ordering that be erased the
transcriptions of the distrainers and the registration of the mortgages, if these last
not is referred to obligations undertaken from the tenderer to a norm of second
comma of the preceding article.
The decree contains also the injunction to the debtor and to the custodian to release
the sold immobile.
It constitutes title for the registration of the sale in the real state registries (944 c.c)
and executive title for the release. (422).
 106

ARTICLE. 407
Unfulfilled of the highest bidder
If the price not be paid in the term and modality established, the judge declares
with decree the expiry of the bidder and the loss of the caution from these paid to a
title of fine and fixes a new audience for the hearing of the parts to norm of the
article. 397.
The clerk, further to communicate the decree of the bidder, it gives public notice
according the formality foreseen from the article. 397.
For the new incantation is proceeded to norm of the article. 397 and subsequent.
If the price that is obtained, together with the confiscated caution, results less to
that of the preceding incantation, the judge, heard the interested parts, condemn
with decree the unfulfilling bidder the payment of the difference.
That provision constitutes executive title (338) in favor of the creditors that
couldn’t find useful placement in the distribution of the proceeds’ sum or, in their
lack, of the debtor.

ARTICLE. 408
PROVISION IN THE CASE OF NEGATIVE INCANTATION
if the sale to the incantation not takes place for lack of an offers, each creditor, in
the term of ten days, can do request of allocation to the norm of the following
article.
ARTICLE. 409
CONTENT OF THE REQUEST OF ALLOCATION
The request of allocation should contain the offer of a sum not less to the expenses
of execution, to the amount of eventual credits having right of pre-emption
(847,884,903,918 c.c.) before to that of the offer and to the price of the immobile
fixed from the judge in the decree that disposes the sale (405/2).
ARTUCLE. 410
RENEW OF THE DESERT INCANTATION
 107

Passed ten days from that of the incantation became desert, the judge of the
execution disposes the hearing of the parts and of the creditors registered not
intervened (397).
To the audience, if there is difference between the credit of the petitioner and the
fixed price for the immobile, the judge invites the highest bidder to pay in, the
eventual balance.
Occurred the pay in, the judge pronounces the decree of transfer (406).
To the audience of which to the n.2, if there are not requests of assignment (408),
the judge disposes the judiciary administration or order that is proceeded a new
incantation.
In this last case the judge can establish different conditions of sale and different
forms of publicity, fixing a basic price less of one fifth to that preceding.
ARTICLE. 411
NOMINATION OF THE JUDICIARY ADMINISTRATOR
The judiciary administrator of the immobile is disposed for a time not higher to
three years; is entrusted to one or more creditors, or either to the same debtor if all
the creditors so consent. To the expiry of the term, should be proceeded to new
incantation.
Upon request of all the parts, the judge can allow one or more post prominent that
not extend completely the amount over three years.
The administration can be before the term indicated in the first comma if the
pignorant creditor or other of the creditor’s request that be proceeded to new
incantation.
ARTICLE. 412
THE ACOUNT
The administrator has the duties of the custody (44) and, except that not renounces
it has right to a compensation which is liquidated from the judge with decree.
At the end of each trimester, if the judge not believe to fix other term, the
administration should present in clerk the bill of his administration and deposit the
available income in the ways established from the judge,
 108

To the end of the administration should present the final report. The partial bill and
that final should be approved from the judge.
To that end, as soon as presented the bill, the judge fixes the audience for the
hearing of the parts in merit to the bill presented and for the resolution of the
controversies that might arise in merit to it.
The provisions of the judge are given with ordinance not appealable.
ARTICLE. 413
ASSIGNMENT OF THE INCOME
During the course of the judicial administration, the judge, with ordinance not
appealable, can dispose that the income collected be assigned to the creditors
according the of the articles 414 and subsequent.
ARTICLE. 414
PROJECT OF DISTRIBUTION OF THE SUM OBTAINED
The judge, not late more of thirty day from the payment of the price provide to
form a project of distribution containing the graduation of the creditor’s that
participate it, with regard of the legitimate cause of pre-emption (847-884, 903,918
c.c.), and deposit it in clerk’s office so that can be consulted from the creditors and
the debtor, fixing the audience for their hearing.
Between the communication of the invitation and the audience, should intervene at
least ten days.
ARTICLE. 415
LACK APPEARANCE
If any of the parts not appear to the fixed audience to norm of the preceding article
and results or is likely that not been appeared for reasons independent from his
willing, the judge fixes a new audience of which the clerk gives communication to
the parts not appeared. The lack appearance also to the second audience imports
approval of the project.
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ARTICLE. 416
APPROVAL OF THE PROJECT
If the project is approved or is reached the accord between the parts, it gives act in
the verbal process (86) and the judge order the payment of the single quotes,
otherwise is applied the dispositions of the lastly and the last paragraph of the
article. 376.
CHAPTER VI
THE EXPROPRIATION OF UNDIVIDED GOODS
ARTICLE. 417
DISTRAINT OF UNDIVIDED GOODS
Can be distrained the undivided goods (698 c.c) also when not all the co-owner are
compeled toward the creditor.
In that case, in the authoritative decree of distraint of which to the art. 350, the
judge fixes an audience for appearance of the interested to give the provisions of
which to the following article, and does forbiddance to the co-owners let to
separate from the debtor his part of the common things without order of justice.
The clerk should notify to the debtor and to the co-owners copy of the petition and
decree of which to the preceding comma at least ten days before of the fixed
audience.
In the same term the clerk gives communication of the decree to the applicant
debtor.
In case it concerns of immobile expropriation should be observed the forms of
publicity prescribed from the article. 397.
ARTICLE. 418
PROVISION OF THE JUDGE
To the audience fixed the judge provide to the separation in nature of the quota a
waiting to the debtor (707-717 c.c).
If the separation is not possible order the sale of the quota undivided or disposes
that to proceed to the division to norm of civil code, and provides to the instruction
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and to the decision of the case related in the ordinary forms of the process of
cognition.
In the last case, the execution is suspended till on the same division not been
intervened an accord between the parts (708 c.c.) or pronounced a sentence passed
in adjucated (709-710 c.c.; 222).
Occurred the division, the sale of the goods attributed to the debtor take place
according the norms contained in the preceding chapters, conserving the distraint
validity for the goods attributed as fore said.
CHAPTER VII
THE EXPROPRIATION AGAINST THIRD OWNER
ARTICLE. 419
WAY OF THE EXPROPRIATION AGAINST THIRDS
When object of the expropriation is burdened good from pawn (885 c.c.) or from
mortgage (821 c.c.) for others debt, or a good of which alienation from the side of
the debtor has been revoked due fraud (234 c.c.), is applied the dispositions
contained in the preceding titles, since are not modified from the articles that
follow.
ARTICLE. 420
NOTIFICATION OF THE PRECEPT
The expropriation should be always preceded from the precept (343-343), that be
carried out also in confront of the third.
In the precept should be made express mention of the goods of the third that is
intended to expropriate (343).
ARTICLE. 421
PARTICULAR DISPOSITONS
The distraint and in general the acts of expropriation are performed also in confront
of the third, to whom is applied all the dispositions related to the debtor, except the
prohibition of which to the article 400 first comma.
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SECOND TITLE
THE EXECUTION FOR HAND OVER OR RELEASE
ARTICLE. 422
PRECEPT FOR HAND OVE OR RELEASE
Who intends proceed for handover of mobile goods or release of immobile thing
should notify to the obliged a precept containing. Further the indication of which to
the article. 343, also the summary description of the goods itself.
If the executive title (338) disposes around the term of the hand over (423) or of
the release (425), the order is done with reference to that term.
ARTICLE. 423
WAY OF THE HAND OVER
Passed the term indicated in the precept, the judiciary officer, provided with the
executive title and the precept, will go in the place in which the things are situated
and search them to norm of the article. 361; therefore, does it hand over to the
applicant part or to a person from him designated.
ARTICLE. 424
THINGS DISTRAINED
If the things to hand over are distrained, the hand over cannot take place, and the
applicant part should prevail his reasons through opposition according the norm of
the article. 433.
ARTICLE. 425
WAY OF RELEASE
The judiciary officer communicates, at least before three days, to the part that is
retained to release the immobile the day and the hour in which will proceed.
In the day and in the hour established the judiciary officer, provided of the
executive title (338) and of the precept (343), and doing use, when required, of the
powers to him conferred from the article. 361, admit the applicant part or a person
designated from him in the possess of the immobile, of which hand over the keys,
ordering to the eventual holders to recognize the new possessor.
ARTICLE. 426
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PROVISIONS AROUND THE MOBILES OUTSIDER TO THE

EXECUTION
If in the immobile are found mobile thing pertaining to the part retained to the
release and that should not be hand over, the judiciary officer, if the same part not
remove them immediately gives notice of the happening release to the applicant
creditor of which been executed the distraint or the sequestration and to the
competent judge for the eventual substitution of the custodian.
ARTICLE. 427
TEMPORARY PROVISIONS
If in the course of the execution arise difficulty that not admit delay, each of the
parts can request, even verbally, to the judge of the place in which are situated the
thing to handover or the goods to release the temporary provisions required the
judge issue the provisions of which to the preceding comma with decree (91).
ARTICLE. 428
EXPENSES OF THE EXECUTION
In the verbal process the judiciary officer specifies all the expenses advanced from
the applicant part.
The liquidation of the expenses is done from the judge with decree that constitute
executive title (64. 338)
CHAPTER I
THE FORCED EXECUTION OF OBLIGATIONS TO DO AND NOT TO
DO
ARTICLE. 429
PROVISIONS OF FORCED EXECUTION
Who intends to obtain the forced execution of a sentence of condemn for violation
of an obligation to do (206 c.c.) or not do (209 c.c.), should request, with petition
to the judge of the place in which the obligation should be performed (14,16), that
are determined the modality of the execution?
The judge provides with ordinance, heard the obligated part, and designate the
judiciary officer that should proceed to the execution and the persons that should
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provide to the performance of the opera not executed or to the destruction of that
performed.
ARTICLE. 430
DIFFICULTIES ARISE IN THE COURSE OF EXECUTION
The judiciary officer can do assist him from the public force and should request to
the judge the appropriate dispositions to eliminate the difficulties that arise in the
course of the execution. The judge provides with decree (91).
ARTICLE. 431
REFUND OF THE EXPENSES
At the end of the execution or in the course of it, the applicant part presents to the
judge the note of the expenses anticipated seen from the judiciary officer, with
request of order of payment.
The judge, when recognize justified the expenses denunciated, provide with decree
that constitute executive title (338).

THIRD TITLE
THE OPPOSITIONS
ARTICLE. 432
OPPOSITION TO THE EXECUTION
When is contexted the right of the applicant part to proceed to forced execution,
that opposition is proposed with petition to the competent judge in view to the
norm of the art.346, 427, 429.
The related opposition to the formal regularity of the title (338) and of the precept
(343) and those related to the notification and performance of the single executive
acts, being inclusive those that regard the liability to distraint of the goods (362-
364), is proposed to the norm of the first comma.
The judge fixes with decree the audience of appearance to the parts before him.
The notification of petition and of the decree is made to the care of the clerk.
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The instruction and decision of the case that happen in the ordinary forms of the
judgement of cognition (127, 192, 194).
ARTICLE.433
OPPOSITION OF THIRDS
The third that pretend the property or other real wright upon goods distrained can
propose opposition with petition to the judge before that being disposed the sale of
the same goods (370, 397).
The judge fixes with decree the audience of appearance to the parts before him,
and the clerk provide to the notification of the petition and of the decree.
If to the audience the parts not reach an accord, the judge provides to the
instruction and to the decision of the case according the ordinary formality of the
judgement of cognition.
ARTICLE.434
LATE OPPOSITION
If the following to the opposition the judge doesn’t suspend the sale of the
moveable things (438) or if the opposition is proposed after the same sale, the right
of the third be deducted from the sum extracted.
ARTICLE.435
LIMITS OF THE TESTIMONIAL PROVE
The third opponent cannot prove with testimony his rights on goods distrained in
the house or in the enterprise of the debtor, except that the existence of the same
right rendered likely from the profession or from the business exercised form the
third or from the debtor.
ARTICLE.436
OPPOSITION OF THE WIFE OF THE DEBTOR
The opposition cannot be proposed from the wife cohabitant with the debtor
relatively to mobile goods distrained in his house (29 pers.inst), except that for the
goods given him or for goods that she proves, with act of certain date (329 c.c)
being appertained her before the marriage or being attained for donation (483 c.c)
or succession due death (724 c.c; 160 pers.inst)
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FORTH TITLE
OF THE SUSPENSION AND OF THE EXTINCTION OF THE
EXECUTIVE PROCESS
ARTICLE.437
LIMITS OF THE SUSPENSION
Except that the suspension be disposed from the law, the forced execution cannot
be suspended except with provision of the judge (349).
ARTICLE.438
SUSPENSION FOR OPPOSITION TO THE EXECUTION
If is proposed opposition to the execution in view of art.432 and subsequent, the
judge, concurring serious reasons, suspends upon request of part the process, with
bail or without.
The judge suspends totally or partially the distribution of the sum obtained when
arise one of the controversies foreseen in the art.376.
The provision is given with ordinance, hears the parts.
In the urgent cases, the judge can dispose the suspension with decree, in which
fixes the audience for the appearance of the parts. To the fixed audience, provide,
with ordinance.
ARTICLE.439
EFFECTS OF THE SUSPENSION
When the process is suspended, no executive act can be performed, except
different disposition of the judge.
ARTICLE.440
RESTORATION
The executive process should be restored with petition in the prentory term fixed
from the judge, and in any case not later of six months from passed in adjudicated
of the sentence of first grade (222) and from the communication of the sentence of
appeal that rejects the opposition.
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ARTICLE.441
RENOUNCE
The process is extinguished if, before of the adjudication, the distrained creditor
and those intervened provided with executive title renounce to the acts (216).
After the sale the process is extinguished if renounce to the acts all the concurrent
creditors.
ARTICLE.442
INACTIVITY OF THE PARTS
Further than that in the cases expressly foreseen from the law, the executive
process is extinguished when the parts not reassumption it or not proceed in the
prentory term established from the law or from the judge (440).
The extinction operates by law, and should be declared also by office from the
judge with ordinance.
ARTICLE.443
LACK OF APPEARANCE TO THE AUDIENCE
If in the course of the executive process none of the parts is present to the
subsequent audience, of which the clerk gives communication to the parts.
If none of the parts is present to the new audience, the judge declares with
ordinance the extinction of the executive process (217).
ARTICLE.444
EFFECT OF THE EXTINCTION OF THE PROCESS
If the extinction of the process is verified before of the adjudication (401), it rends
ineffective the acts performed, if occurs after the adjudication (405-406), the sum
obtained is recon signed to the debtor.
In the of immovable expropriation, the judge, with ordinance that declares the
extinction, disposes that be cancelled the transcription of the sequestration.
The ordinance is valid title for the cancellation occurred the extinction of the
process, the custodian rends to the debtor the discount, which discussed and closed
before to the judge.
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The expense of the extinct process is on burden of the parts that have anticipated it
(61).