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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
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) But an exception is accepted to this rule and that is if the claim is expressly limited to a specific basis and if the reason of the action is clearly shown in the formula of the action 45 . However in personal actions, a different obligation arises from each relation. For example, the plaintiff brings an action claiming an amount of money, basing on a sale contract and he loses this action, then he can demand the same amount of money, by bringing a new action basing on a loan agreement this time, without encourtering any legal obstacles 46 . So the system of ipso iure destruction is used only where the notion of novatio is possible that is in personal actions with formulae in ius 47 . One of the simplest example that can be given to explain the scope of bis de eadem re ne sit actio principle is like this; “the plaintiff, brings an action against the defendant. After conclusion of joinder of issue phase of the formula, it becomes impossible for the plaintiff, to bring the same action once again on the same contentious issue either by ipso iure, or by an exceptio rei iudicata vel in iudicium deductae 48 which is brought forward by the defendant. But the scope of bis de eadem re ne sit actio principle should not to be considered too narrow as in the example given above. Otherwise it would be impossible for this principle to reach its aim. The concept of “same action”, must be considered on a large scale. In some cases, bis de eadem re ne sit actio principle becomes meaningless, allowing to bring another action, serving the same purpose with the first action. For this reason, if more than one action exist targetting the same purpose or if more than one plaintiff can bring an action against one defendant, bis de eadem re ne sit actio principle should be applied 49 . Bis de eadem re ne sit actio principle is not applied to a plaintiff in cases where he brings an action of replein against a defendant, against whom, he brought forward an interdictum 50 or a condictio 51 about the same contentious issue. That is because, interdictum is about possession and rei vindicatio is about ownership 52 . In these cases it can not be accepted that the same demand is claimed. But, bis de eadem re ne sit actio principle is accepted in cases where actio redhibitoria 53 and actio quanti minoris 54 are brought 45 D. 44, 2, 11, 2, 14; D. 44, 2, 14, 2. 46 Burdese, A.; Manuale di Dirirtto Privato Romano, Turin 1964, p.115 sq; In Roman law of procedure, no general action exists. This means that, every right must be protected by a different action. As, it is possible that more than one personal right can exist on the disputed thing, bringing different actions before the court about different personal rights, is not considered in the extent of the bis de eadem re ne sit actio principle. Because, diffferent personal rights arising from different legal relations, become subject to different actions. For instance, after an action related with the sale contract of a disputed thing, an action reletad with loan for use agreement of the same disputed thing can be brought before the court without any legal obstacle. 47 Buckland, s. 695-6. 48 Gai. 4, 106; Where an action is brought under the authority of a magistrate, whether it is real or personal, or whether it is based upon a formula of fact or a statement of law, it is not by operation of law a bar to subsequent proceedings having reference to the same matter and therefore it is necessary to plead an exception on the ground that a decision has already been rendered, or that issue has been joined in the case. 49 Goudsmit, J. E.; The Pandects; The Treatise on the Roman Law and upon its Connections with Modern Legislation, Transl. by R. D. Tracy Gould, London, 1873, p. 135; Pugliese, p. 426. 50 Schulz, p. 444- 445; Umur, Z.; Roma Esya Hukuku, Istanbul, 1985- Roman Law of Property, p. 404 (Property); Karadeniz- Celebican, O.; Roma Esya Hukuku, Ankara, 2000- Roman Law of Property, p. 116 sq.; Means to be of use to protect possession are called interdicts (interdictum). Interdicts are divided into two groups as, interdicts protecting the continuous of the possession and interdicts to be use of obtaining the lost possession again. 51 Provera, p. 24; Tahiroglu / Erdogmus, (Matters), p. 197, D. 44, 2, 31. 52 Arangio- Ruiz, p. 163; (D. 44, 2, 14, 3; D. 41, 2, 12, 1). 53 Umur, (Dictionary), p. 12; The salesman is responsible for the physical faults only in horse and slave sales in Roman classical law period and in all kinds of goods sales in Justinian period. Actio redhibitoria is an action granted to the purchaser by aedilis curulis, to bring against the salesman to compensate the damages caused by the physical fault in the thing. This action is an action in the form of arbitraria and it can be brought before the court in six months. According to this action, salesman is held responsible for the faults that he is not aware of. GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 147
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