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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
assumed that the content of the judgement is true. A contentious subject should not be discussed more
than one time, because different decisions given about one contentious issue can harm public conscience
and it is against the procedural economy 6 .
Res iudicata, bars a later claim because the issue definitely comes to a conclusion before the court 7 and it
shows that the claim is extinguished and the fact is revealed 8 . By the extinction of the action, a new
situation is formed and both parties of the action must respect this new situation. If the plaintiff, loses the
action because of not obeying some formal provisions while bringing the action, but then wishes to bring
a new action after correcting these discords, praetor 9 does not grant him the right to bring the second
action. This means that praetor refuses the plaintiff’s claims. Besides praetor can grant an action to the
plaintiff but in the same time he also grants an exceptio rei iudicata in favour of the defendant which
makes the plaintiff’s action senseless 10 .
Bis de eadem re ne sit actio principle and definite judgement are directly related with the cultiminating
effect of the joinder of issue (litis contestatio) 11 . As it is known, especially in formulary system, the litis
contestatio phase carries an important role. It extinguishes the claim sued on and replaces it by a right to
have the question as formulated, decided by the judge (iudex). During the prosecution of an action, when
joinder of issue phase is completed, it is accepted that contentious issue between the parties comes to an
end and this contentious issue can not be brought before a court subsequently 12 . The aim of bis de eadem
re ne sit actio principle is, in a way gained by completing the joinder of issue phase in formulary
procedure, because this produces the same results with res iudicata in some conditions.
Joinder of issue phase can be accepted as an agreement made by the parties of the action. But it is not
done under the control of praetor. By conclusion of joinder of issue phase, the subject of the action
becomes this agreement. In formulary system of Roman procedural law, after completing joinder of issue
phase of an action, the possibility of bringing another action 13 or forming a new joinder of issue with
reference to the same contentious issue, ends 14 .
recuperatores hear different actions. They are common in the court of preator peregrinus but they are sometimes employed by
praetor urbanus.
5 Stephenson, A.; A History of Roman Law with a Commentary on the Institutes of Gaius and Justinian, Colorado, 1992, p. 200
sq.; Tahiroglu, B./ Erdogmus, B.; Roma Hukuku Meseleleri, Istanbul, 2001- Some Matters in Roman Law, p.195, (Matters).
6 Thomas, p. 319; Roby, H. J.; Roman Private Law in the Times of Cicero and of the Antonines, Cambridge, 1902, p. 259;
Tahiroglu/ Erdogmus, (Matters), p.194.
7 D. 3, 3, 40, 2.
8 Muirhead, J.; Historical Introduction to the Private Law of Roman, 3. Ed., Rev. and Ed. by Henry Goudy, London, 1912, p.
90; Umur, Z.; Roma Hukuku Lugatı, Istanbul, 1985- Roman Law Dictionary, p. 181-2, (Dictionary); The judge, while giving
the judgement, takes into consideration res in iudicium (D. 1, 5, 25; D. 42, 1, 1).
9 Schulz, F.; Classical Roman Law, Oxford, 1951, p. 13; The jurisdictional magistrate within the limits of the Rome and boths
parties are Roman citizens, is called praetor urbanus; if one or both are non- Romans the jurisdictional magistrate is called
praetor peregrinus.
10 Tahiroglu, B. / Erdogmus, B.; Roma Usul Hukuku, Istanbul 1994- Roman Procedural Law, p. 28, (Procedure).
11 Schulz, p. 14; The term litis contestatio is used to designate the end of the proceeding in iure and even this proceeding as a
whole.
12 Wenger, p.104; Frezza, P.; Le Garanzie delle Obbligazioni, Le Garanzie Personali, V. I, Padova 1963, p. 311, The changes
which occurred on the subject of the action after joinder of issue phase, are no longer taken into consideration. They can only
be subject of another action. “D. 5, 1, 23, Paul. 7 ad Plaut.; Non potest videri in iudicium venisse id quod post iudicium
acceptum accidisset : ideoque alia interpellatione opus est”. “Obligatio operarum which are not requested from the plaintiff
before the end of litis contestio phase, can not be gauged in this action.
13 “Gai. 3, 180; Tollitur adhuc obligatio litis contestatione, si modo legitimo iudicio fuerit actum nam tunc obligatio quidem
principalis dissolvitur, incipit autem teneri reus litis contestatione; An obligation is also extinguished by a joinder of issue,
provided the action brought is authorized by law, for then the original obligation is dissolved, and the defendant begins to held
GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 142