Res judicata
Authors: Kennett Wendy , Triantafyllou-Albanidou Flora , Fitger Peter , Caponi Remo , Gras Ernst 
Published: April 2022

Both judgements of the German Federal Supreme Court concern the effects of final judgements on later proceedings. A decisive factor is whether the issues arising in the later proceedings are to characterised as new facts which are therefore not affected by the earlier judgement.
The judgement of the Supreme Court of 14.7.1995 had the following facts: The owners of a piece of land sued in the first proceedings for a declaration that the owners for the time being of that piece of land had an easement in the form, inter alia, of a right to come and go on part of a road over neighbouring property, and as a subsidiary claim they sought a right of a way as a necessity. The claim as to the right of way was dismissed by means of a binding judgement, because the stretch of road was held to be part of the public one. But this decision was quashed, and after the first proceedings had ended, it was established in a binding judgement of an administrative court, that the road was not a public highway. The same plaintiffs therefore brought new proceedings against the same defendant seeking to ensure that their right to come and go over the disputed stretch of road was not impeded, and as a subsidiary claim that a right of way of necessity should be recognised.
According to the Supreme Court, the earlier judgement did not stand in the way of a judgement in these later proceedings. The headnote to the case states: 'If an action for a declaration concerning the existence of a traditional right of way is in part dismissed because there is a public highway there anyway, and if later the administrative authorities and courts deny the existence of a public highway, the res judicata effect of the earlier judgement does not hinder a new action based on the existence of the easement.'
The judgement of the Supreme Court of 16.10.1995 had the following facts: A concluded a contract in 1988 under which he bought shares in B for 9360, DM payable in 124 monthly installments. The contract was only partly performed by A. By a final judgement of 4.11.1992, A was required to pay a total of 8256,DM. In a solicitor's letter of 29.3.1993, A exercised his purported right to withdraw his agreement to the contract in reliance on the Law on the rescission of doorstep sales, arguing that the employee of V-GmbH which B had entrusted with the sale of its shares, and in whose home A had given his agreement to the contract, had not given him the required information about his right of rescission, but had kept it to himself with tortious intent. The withdrawal of his agreement formed the basis of an action by A to prevent execution of the agreement formed the basis of an action by A to prevent execution of the judgement of 4.11.1992 (Vollstreckungsgegenklage). In the earlier proceedings, A had not disputed B's claim that information about his right of rescission had been given to A, and that he had confirmed this by by his signature. A took the view that enforcement of the earlier final judgement was impermissable because he had now withdrawn his agreement to the contract which formed the basis of that judgement. In addition he argued that he had a claim based on damage caused by action contrary to bonos mores, because B was vicariously liable for the fraudulent actions of V-GmbH. The landgericht dismissed the Vollstreckungsgegenklage. A's appeals to the Court of Appeal and the Supreme Court were unsuccessful.
In this case, in the opinion of the Supreme Court, the res judicata effect of the earlier judgement hindered a judgement in favour of A in later proceedings. The withdrawal of agreement to a contract under the Law on the rescission of doorstep and other similar transactions (HWiG) was not a new fact within the meaning of 767(2)ZPO; it was not to be characterised as an event creating or transforming rights, but rather as a defence to a claim.