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|Title:||Res judicata : its scope, nature and the requisites of the corresponding plea|
|Citation:||Vassallo, A. (1997). Res judicata: its scope, nature and the requisites of the corresponding plea (Master's dissertation).|
|Abstract:||It is evident that judgments, being pronouncements, which emanate from one of the organs of the State, must be respected and endorsed. Moreover, they constitute a concrete application of the abstract rule of law and should, therefore, have the same binding force of the law itself. For these purposes, Roman jurists developed the notion of res judicata, which is the binding force attributed to judgments. For a judgment to constitute res judicata, it must, first of all be irrevocable i.e. there should not be any possibility of appealing therefrom. Moreover, for a judgment to attain the authority of res judicata, it must satisfy the three conditions of eadem res, identity of the object; eadem causa petendi, identity of the cause of the claim and eadem personae identity of the parties. Obviously, these three conditions can be determined when the judgment is compared with another judgment which would eventually be given in another lawsuit. Once these requisites are satisfied, then the judgment acquires the authority of res judicata. The consequences of the authority of res judicata are, that such a judgment cannot be challenged in subsequent proceedings by any one of the parties to the lawsuit in which it was delivered. Once a court is satisfied that the dispute before it, has already been settled by a judgment constituting res judicata, then it is impeded from taking cognisance thereof once again. The authority of res judicata is protected by a plea - the plea of res judicata. Every judgment constituting res judicata gives rise to a plea, which can be raised against the party, be he the plaintiff or defendant, who in a new lawsuit revives a dispute already settled by a previous judgment, between the same parties. The existence of this plea has been acknowledged by the Maltese legislator in the Code of Organisation and Civil Procedure - Chapter 12 of the Laws of Malta. However there is no set of rules which regulate specifically this plea. Thus, it was left to the courts to develop the rules regulating the plea of res judicata, by applying the general principles of law accepted in doctrine and continental law. The requisites necessary for the exercise of such plea are the same as those which must be satisfied for a judgment to constitute res judicata. Hence for the plea to be raised successfully, three conditions have to be satisfied: identity of the object; identity of the cause of the claim as well as identity of the parties. Once the court establishes that these three requisites concur then, it will refrain from entering into the merits of the cause. There do, however, exist exceptions to the rule that a judgment constituting res judicata can no longer be attacked. In our legal system, there exists the possibility of demanding a new trial of a cause determined by a judgment constituting res judicata. Moreover, the parties may also set aside what has been decided by a judgment constituting res judicata, by a compromise. It is also accepted that the parties may renounce the effects of res judicata. Finally, a judgment will not be allowed to stand, notwithstanding the fact that it constitutes res judicata, if it violates one of the party's right to a fair hearing. From a procedural point of view, the plea of res judicata can be raised at any stage of the proceedings and also before the appellate court, it being a peremptory plea. Moreover, the legislator has prescribed that the decision on such plea must be made under a separate head of judgment.|
|Appears in Collections:||Dissertations - FacLaw - 1958-2009|
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