TACIT WITHDRAWAL: A SOURCE OF NATURAL OBLIGATIONS

Abstract

The tacit withdrawal, is one of the abnormal ways of ending the process, instituted since Law 105 of 1890, it has also been called, expiration of the instance or perenniality. The reason behind the decision is the abandonment or inactivity of the process at the request of the party. Article 317 of the General Code of Procedure regulates the procedural act, nefariously sanctioning the litigant, with the extinction of the right sought, when it is decreed a second time between the same parties and in the exercise of the same claims.
The consequence falls on the right of action, according to the proportionality study carried out by the Constitutional Court in judgment C-1186 of 2008, which declared the consequence envisaged in law 1194 of 2008 enforceable; judgment that applies to article 317 of the CGP, without, as the judgment warned, the substantial right is lost, what is lost is the right of action. When the intended right is extinguished, the obligation is devoid of action, becoming a natural obligation, at the discretion of the debtor, the procedural action is not a way to decongest the judicial offices, as expressed by the litigants, it is the sanction to their litigation neglected, resulting in the withdrawal of the action, and hence its extinction. Obviously, the tacit withdrawal is an input for decongestion, but it is for the obligation the cause of changing from civil obligation to natural, by not conferring the right to demand its fulfillment. Therefore, in article 1527 of the Civil Code, this new natural obligation must be included.