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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) on the same contentious issue. The plaintiff brings an actio redhibitoria about a fault on the good he bought, but then he is cast in the action. It will be against bis de eadem re ne sit actio principle, if he wants to bring an actio quanti minoris this time, against the same defendant about the same fault on the same good. Because, the subject of the first action (actio redhibitoria) and the second action (actio quanti minoris) are the same 55 . But, bis de eadem re ne sit actio principle is not applied to cases where, after being cast in an actio rei persecutoriae the plaintiff brings an actio poenales against the same defendant about the same subject. Even though in Roman law, like the rest of the criminal actions and compensation actions, actio rei persecutoriae and actio poenales aim the same purpose, they are not accepted as “same actions”. Because the characteristics of both these actions are different. If the plaintiff, after being cast in the actio furti, brings a condictio furtiva against the same defendant about the same subject, or the contrary, he does not encounter any legal obstacles. In the same way, the plaintiff’s bringing a actio furti after rei vindicatio which he has lost, is not against bis de eadem re ne sit actio principle 56 . When all these explanations are taken into considerations, it would be hard to say that eadem res can only be determined when the litis contestatio phase of the action is completed. However, it would be more accurate to say eadem res is determined by also considering the definite judgement given by the court 57 . As we said before, joinder of issue phase of the action plays an important role especially in Roman classical law period. But surely, this does not mean that the judgements given by courts are ineffective. In fact, definite judgement is so effective that existence of second judgement about one subject, not only harm the interests of the parties of the action but also the public benefit. This perspective in late Roman law forms the basis of the concept of definite judgement of current times 58 . In formulary procedure, appeal is not known. The decision given by the judge at the end of the action is definite and considered as the fact. But even the best judges can make mistakes. If a judge, makes a mistake on the basis of formulary procedure, the judgement is considered as not existing. For example, if the plaintiff or the defendant does not have the capability of being a side in an action, because he is mentally ill or because of some other reasons, or the judgement is given without listening one side, it is accepted that no judgement exists 59 . In such cases, the plaintiff can bring an action once again without encountering any legal obstacles, because there is no definite judgement about this contentious issue. If the first action ends in favour of the plaintiff, the defendant can claim that no judgement exists in an execution action which has brought by the plaintiff. But in Roman law and especially in formulary 54 Berger, p. 67; Actio quanti minoris, is an action brought before the court for reduction of the payment. This action is also called as actio aestimatoria. 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 in Justinian period. Actio quanti minoris is an action granted to the purchaser by aedilis curulis, to bring against the salesman for reduction of the payment because of the damages caused by the physical faults in the thing. This action can be brought before the court in one year and salesman is held responsible for the faults that he is not aware of. 55 Provera, p. 25; D. 44, 2, 25, 1. 56 Sohm, R.; The Institutes: A Textbook of the History and System of Roman Private Law, Transl. by J. C. Ledlie, 3. Ed., New Jersey, 1970, p. 445; In actions related closely to public order like status actions, the judgement given by the court, binds everybody (D. 1, 5, 25). 57 Provera, p. 25. 58 Pugliese, (Action), p. 427; Tahiroglu/ Erdogmus, (Procedure), p. 18 sq.; In formulary procedure, like legis actiones procedure, slaves do not have a capability of being side in actions. But some changes are occurred in the status of filius familias. They can be put in the position of defendant for the legal relation that they have taken in part. Women have a limited capability of being a side in actions about their own matters. In formulary procedure, foreigners gained the capability of being side in actions. Also in this procedure, it is necessary for people who do not have the capability of being side in actions to be represented, in actions related with them. 59 Wenger, p. 211; (D. 49, 1, 19; C. 1, 21, 3; C. 2, 10, 3; C. 7, 52, 2). GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 148
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) system, serious sanctions are put into practice to the one, who claims that the definite judgement does not exist and turned out to be in the wrong 60 . CONCLUSION In this article it is emphasized that some important principles and institutions of procedural law of current law systems are based on the Roman procedural law. Bis de eadem re ne sit actio is one of the important principles used in both Ordo iudiciorum privatorum and Cognitio extra ordinem procedures and also it plays a considerable role in the current law systems. This principle proves that there can only be one definite judgement on a controversial issue. Otherwise, justice can not be found in a community and nobody relies on judgements given by courts. This would cause social chaos and people would choose to protect their rights by themselves. But in an equitable community, the decisions given by the court is considered as trusty and people know that the decision would not be changed in another time. Also, this confidence to the judgement, prevents people to bring the dispute more than once to the court and provides reliance to the State. Hence, a plaintiff would not be disturbed by summoning to the court frequently. So it can be said that by accepting bis de eadem re ne sit actio pirinciple and other relevant regulations and arrengements, Roman law tries to constitute an equitable comunity. BIBLIOGRAPHY Arangio-Ruiz, V.; Storia del Diritto Romano, 7. Ed. con Note Aggiunte, Naples, 1957. Berger, A.; Encyclopedic Dictionary of Roman Law, Philadelphia, 1968. Betti, E.; Istituzioni di Diritto Romano, V. I, Parte Generale Padova, 1960. Buckland, W. W.; A Text-Book of Roman Law from Augustus to Justinian, Cambridge, 1932. Burdese, A.; Manuale di Diritto Privato Romano, Turin, 1964. Colquhoun, P.; Summary of the Roman Civil Law, London, 1849. Di Marzo, S.; Roma Hukuku, 6.Ed, Transl. by Z. Umur, Istanbul, 1961- Roman Law. De Zulueta, F.; The Institutes of Gaius, Part II, Oxford, 1953. Frezza, P.; Le Garanzie delle Obbligazioni, Le Garanzie Personali, V. I, Padova, 1963. Goudsmit, J. E.; The Pandects; A Treatise on the Roman Law and upon its Connections with Modern Legislation, Transl. by, R. D. Tracy Gould, London, 1873. Hunter, W. A.; Introduction to Roman Law, New Ed. by A. F. Murison London, 1921. Karadeniz-Celebican, O.; Roma Esya Hukuku, Ankara, 2000- Law of Property. Longo, G.; Richerche Sull’ “Obligatio Naturalis”, Milan, 1962. Marrone, M.; “L’Efficacia Pregiudiziale della Sentenza nel Processo Civile, Annali Palermo, V. 24 1955. Muirhead, J.; Historical Introduction to the Private Law of Roman, 3. Ed., Rev. and Ed. By H. Goudy, London, 1916. Provera, G.; La Pluris Petitio nel Processo Romano I, La Procedura Formulare, Turin, 1958. Pugliese, G.; “L’Actio e la Litis Contestatio nella Storia del Processo Romano”, Studi in Onore di Enrico Tullio Liebman, V. 1, 1979. Pugliese, G.; Il Processo Civile Romano, Il Processo Formularae, V. II, Milan, 1963. Roby, H. J.; Roman Private Law in the Times of Cicero and of Antonines, V. I, Cambridge, 1902. Schulz, F.; Classical Roman Law, Oxford, 1951. Sohm, R.; The Institutes: A Textbook of the History and System of Roman Private Law, Transl. by J. C. Ledlie, 3. Ed., New Jersey, 1970. Stephenson, A.; A History of Roman Law with a Commentary on the Institutes of Gaius and Justinian, Colorado, 1992. Tahiroglu, B./ Erdogmus, B.; Roma Hukuku Meseleleri, 2. Ed., Istanbul, 2001- Some Matters in Roman Law. Tahiroglu, B./ Erdogmus, B.; Roma Usul Hukuku, Istanbul, 1994- Roman Procedural Law. Thomas, J. A. C.; Textbook of Roman Law, Amsterdam, 1976. Umur, Z.; Roma Hukuku Lugatı, Istanbul, 1985- Roman Law Dictionary. Umur, Z.; Roma Esya Hukuku, Istanbul, 1985- Roman Law of Property. Wenger, L.; Institutes of the Roman Law of Civil Procedure, Transl. by H. O. Fisk, New York, 1949. 60 Hunter, W. A.; Introduction to Roman Law, New Ed. by A. F. Murison, London, 1921, p. 1011. GOKCE TURKOGLU-OZDEMIR - “BIS DE EADEM RE NE SIT ACTIO” PRINCIPLE IN THE FORMULARY SYSTEM OF ROMAN LAW OF PROCEDURE 149
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