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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
judgement is put forward. Otherwise, res iudicata alii non nocet principle which means that judgement of
the court must not harm people who are not the party of the action, is put into practice 35 .
Sameness of the parties (Subjective similarity);
As a rule, the judgement given at the end of the action, binds and shows its effects only on the parties of
the action (res iudicata ius facit inter partes). For example, only the plaintiff can not bring an action of
replevin (rei vindicatio) once again, if he is identified as not owing the land. Of course, the sentence of the
court also binds the successors of the plaintiff and defendant 36 . In fact, sameness of the parties is
considered as a legal position than an actual position. For this reason, the exception of definite judgement
can be brought forward to the successors of the plaintiff and defendant, but it does not affect
predecessors 37 . But a person who brings an action as a trustee, does not encourter any legal obstacles if he
brings the same action again, but this time as a plaintiff 38 .
Sameness of the subject (Objective similarity); The contentious issue must not be the subject of another
action. That is, every intentio section of an action’s formula must be different from each other. Otherwise,
bis de eadem re ne sit actio principle is violated because, the subsequent action can not be brought before
the court with reference to same contentious issue 39 . When two or more actions have different formulas 40
but they head for the same aim, they may be considered as same actions 41 , if they fulfil other necessary
conditions.
In real actions, the reason of the action has great importance. In this kind of actions, the plaintiff does not
have to prove how he obtained the right 42 . If the plaintiff brings an action, claiming that he ownes the
subject of the action becuse it is transferred to him by tradito and he loses the action of replein (rei
vindicatio), because he can not prove his claims, then it becomes impossible for him to bring another
action of replein, this time claiming that he ownes the contentious issue by acquisition of quiritary
ownership over a corporeal thing (usucapio) 43 . The defendant has the right to bring forward the exception
of definite judgment in this second action 44 . But in the progressive period of Roman law, this proceeding
is changed. It is still accepted that real actions bar all future real actions on possible reasons of the claim.
35 Colquhoun, P., Summary of the Roman Civil Law, London, 1849, p. 595; Marzo, di S.; Roma Hukuku, 6. Ed., Transl. by Z.
Umur, Istanbul, 1961, p. 127, 132, 147; Tahiroglu/Erdogmus, (Matters), p. 196.
36 D. 44, 2, 4; D. 44, 2, 28.
37 Buckland, p. 699; Sameness of the parties means juristic identity.
38 D. 44, 2, 4, 9 ; Tahiroglu/ Erdogmus, (Matters), p. 196.
39 Tahiroglu/ Erdoğmuş, (Matters), p. 197; Wenger, p. 190.
40 Buckland, p. 697; For instance an action in factum on a deposit contract bars an action in ius on the same facts. This rule is
also valid for different contracts.
41 D. 44, 2, 3.
42 Pugliese, (Processo), p. 287; As an example, in an action of replein, it is sufficient for the plaintiff to prove that he ownes the
contentious thing.
43 Buckland, p. 241 sq.; Usucapio can be defined shortly as acquisition of dominium by possession for a certain time.
44 Provera, p. 68; This solution which is used in real actions is considered to belong to the Roman classical law period. In
classical law period, if the reason of the action is shown in the intentio phase of the real action’s formula, the plaintiff, after
being cast in this real action, does not have the right to bring the same real action. And this result does not change, even if he
bases on a different reason, in second action. There can be found some texts in Roman law sources, which defend the opposite
opinion. But they are claimed as interpolated. Buckland, p. 696; In real actions the bar is only praetorian. We can say that in
these actions in the legis actio procedure, no bar exists, because lex Aebutia does not allow the formula in real actions. But this
conclusion is not generally accepted by Roman jurists. As in legis actio procedure, joinder of issue is at its beginging and the
baring effect can not bear any relation to novatory effect. This is due to the bis de eadem re ne sit actio principle.
GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 146