The force of res iudicata of an unusual German decision involving a property case

By Laura A. Patti, Patti - Avvocati & Rechtsanwälte

A German judge holds that the jurisdiction does not belong to him (being an Italian judge the competent one) but, at the same time, incidentally decides upon one of the issues in the merits, contrary to the client’s interest. When suing in Italy, which part of the German decision is covered by force of res iudicata and, thus, binding for the Italian judge?

The case has to be decided according to German Law, i.e. Article 322 of the German Code of Civil Procedure (hereinafter “ZPO”), which states in the first paragraph: “(1) The judgements can acquire force of res iudicata insofar as a decision on the claim or counterclaim has been issued.”

The commentators of the ZPO hold that the legislator wanted to limit the force of res iudicata to the subject matter of the dispute and, as a result, no force of res iudicata extends to the facts, nor to the judicial consequences. Also, the jurisprudence stated that “The force of res iudicata of a decision is limited to the immediate subject of the decision, i.e. the legal consequence that forms the operative part of the decision. The single elements of the decision, the factual findings and the judicial inferences, based on which the decision has been taken, on the contrary are not affected by the force of res iudicata” (German Supreme Court - BGH, NJW 1986, 2509).

In the present case, the German Court, besides establishing its lack of jurisdiction, decided upon a question posed in the alternative, whereas no decision has been issued on the main demand.

Thus, consistent with what has been said above, the inference, incidentally made on the issue on the merits, was not covered by res iudicata: a positive outcome for the client.

Laura A. Patti

Laura A. Patti

Patti - Avvocati & Rechtsanwälte, Rome, Italy
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Patti - Avvocati & Rechtsanwälte is an international law firm with offices in Rome, Milan and Munich. Its main areas of practice are family law, inheritance law, business law and international law. In all areas of practice, the law firm works on a cross-border level.

Laura A. Patti is an Associate at Patti – Avvocati & Rechtsanwälte. Fields of specialisation: antitrust law, international arbitration, contracts.

Published: Spring 2017 l Photo: BRIAN_KINNEY -


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