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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
“BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE
FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE
by
Dr. GOKCE TURKOGLU-OZDEMIR*
INTRODUCTION
As it is known, Roman law of procedure, is developed in two main terms. The first one is called Ordo
iudiciorum privatorum and the second one is called Cognitio extra ordinem. Ordo iudiciorum privatorum
is also divided into two parts; legis actiones and formula proceedings. Legis actiones proceeding is used
in the primitive times of Roman law. Because of this reason some of the regulations and institutions are
not known during this proceeding. Roman law of procedure makes a progress mainly during the formula
proceeding. But it can be definitely said that, the regulations made in the Cognitio extra ordinem mainly
effected the current procedural law. In this article, we will will explain briefly how bis de eadem re ne sit
actio principle is used in formulary procedure. Putting forward how this principle makes a progress during
a long period of time will be useful to understand the principle better in current law systems.
“BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE
“Bis de eadem re ne sit actio” or “ne bis in idem” principle, is put forward briefly, to prevent bringing an
action more than once on the same contentious issue in Roman law of procedure 1 . This universal principle
is valid in both Ordo iudiciorum privatorum and Cognitio extra ordinem procedures of Roman law,
forbidding to maintain once again the same action with reference to same issue. Although it is known
even in the initial times of Roman law that there can not be more than one definite judgement about a
contentious subject 2 , bis de eadem re ne sit actio principle, which confirms this reality, shows its effects
mostly in formulary system 3 .
The decision given by the judge or judges 4 is called definite judgement. In Roman law definite judgement
(res iudicata) is accepted as expressing the fact (res iudicata pro veritate accipitur) 5 . Therefore, it is
* Asst. Prof. Dr. Dokuz Eylul Unv. Fac. of Law- Izmir TURKEY
1 Wenger, L.; Institutes of the Roman Law of Civil Procedure, Transl. by H. O. Fisk, p. 189; Bis de eadem re ne sit actio
principle is also in use, in modern law systems. In modern law systems, to apply the principle, the action must be ended and
definite judgement must be given. But in formulary procedure of Roman law, completing the litis contestatio phase, is
sufficient. According to this, in formulary system, even though the definite judgement could not be given for some reasons, bis
de eadem re ne sit actio principle is applied.
2 Gai. 4, 108; Alia causa fuit olim legis actionum. nam qua de re actum semel erat, de ea postea ipso iure agi non poterat nec
omnino ita, ut nunci usus erat illis temporibus exceptionum; The rule was formerly different when the ancient method to
procedure was employed, for when proceedings concerning a matter had once been instituted, no legal action could be taken
with reference to it, nor was the employment of exceptions in those times customary, as it is now.
3 Thomas, J. A. C.; Textbook of Roman Law, Amsterdam, 1976, p. 318; Provera, G.; La Pluris Petitio nel Processo Romano, I,
La Procedura Formulare, Turin, 1958, p. 23.
4 Zulueta, de F.; The Institutes of Gaius, Part II, Oxford, 1953, p. 225 sq; The number of the judges who prosecute the action,
can change according to the type of the action. As a rule, the issue which is defined by joinder of issue phase, goes for trial to a
single private citizen who is chosen from an list and empowered by the parties and praetor. Sometimes an arbiter who is a
special iudex hears an action in which more is left to his discretion than in a strictum iudicium. Several iudices who are called
GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 141