res judicata

Discussion in 'Lingua Latina (Latin)' started by yasemin, Aug 31, 2005.

  1. yasemin Senior Member

    Turkey, Turkish
    this frase seemed latin to me. the whole sentence is "they have not been convicted of an offence concerning their professional conduct by a judgement which has the force of res judicata". i just want to know if there is an english word or frase that can be replaced with this. the italians who knows latin as well, could you please help me?

  2. Elisa68 Senior Member

    Italy Language:Italian
    Yes it is Latin and in English should be "stare decisis", that, I am sorry, is another Latin term!!

    It means that a judicial sentence cannot be appealed anymore.

    << No longer needed. >>
    Last edited by a moderator: Oct 18, 2013
  3. Frawg Lofone Member

    US -English
    Hi actually, they are not the same ideas:

    stare decisis is used to reference notions of precedent to guide courts in later decisions

    res judicata is widely used in English and it means you cannot re-litigate the same issue, once it has been decided by the highest court, between the same two parties. In essence, once you've gone to the highest court (or had a court of appeals refuse to hear your case) concerning your particular dispute, that's it, you cannot turn around and start all over again hoping for a different decision by a different judge.
  4. William Stein Senior Member

    San Jose, Costa Rica
    American English
    Right, it's also translated as "a final judgement of the court of the highest instance, without appeal"

    For example, tenant can offset against landlord only such counterclaims as are undisputed or res judiciata (established by the final judgement of a court of law)
  5. Kevin Beach

    Kevin Beach Senior Member

    Res judicata is classical Latin. It comes from Roman law. Its translation is "a thing [already] judged".

    In English law the doctrine of res judicata extends to any issues between the parties that could have been conveniently litigated at the same time. For example, in a litigated partnership dispute the parties have to bring to the court all the issues they want decided or they will lose the right to do so afterwards.

    Basically, if a court has made a decision about the facts of a dispute, which are the same relevant facts in another dispute between the same parties, the earlier judgment will prevent the later dispute being litigated.

    How it applies in the passage quoted in the OP is difficult to imagine without more context. It may mean that a professional body has decided that somebody has behaved unethically according to professional rules, but that does not mean that they are also guilty of a criminal offence based on the same facts. The decision of the professional tribunal is not an earlier judgment of a "court" which would act as res judicata to stop them protesting their innocence in a criminal court. Therefore, a lawyer who is struck off or disbarred by his professional body for taking a client's money is not prevented from fighting a later charge of theft in the criminal courts.

    It does not depend on there having been an appeal. A first instance decision in any court of law can stand as res judicata.
  6. William Stein Senior Member

    San Jose, Costa Rica
    American English
    It's true that a decision res judicata doesn't always have to be delivered by a court of the highest instance. For example, in criminal cases, if the defendant is acquitted in a lower court, he can't be tried again for the same crime. I was thinking of civil law, where the idea is that the judgment can no longer be appealed, which is usually because all remedies have been exhausted (meaning going through all the higher courts). There are some other reasons barring an appeal, like estoppel and prescription (the appeal is time barred), so a lower court judgement can be res judicata in certain cases (but if there weren't always some tricky exceptions lawyers wouldn't be so rich, would they?).
  7. Kevin Beach

    Kevin Beach Senior Member

    I think we're talking about different legal jurisdictions, William. The way I set it out is as the civil law is in England and Wales. There is no automatic right of appeal in civil cases any more. Permission has to be sought from either the trial judge or from the potential appeal judge. Most applications for permission to appeal are refused, because the policy is that there must be finality of litigation in civil cases except where it would be unjust not to review the decision.

    Unless the decision of the first instance court is overturned on appeal, it is res judicata.

    Incidentally, we no longer have an absolute double jeopardy rule in criminal cases. If the Crown Prosecution Service believes after an acquittal that it has obtained further evidence pointing to guilt, and that the evidence wasn't reasonably available for the trial, it can apply to the High Court for permission to bring another prosecution. The fact of the previous acquittal is not relevant to the second trial.
    Last edited: Oct 23, 2013
  8. ablativ Senior Member

    Since there was no letter "j" in classical Latin, 2000+ years ago, they will have written "res iudicata".

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