Bis de eadem re ne sit actio! Римская концепция eadem res в практике российских судов по делам о реституции в связи с недействительностью сделки

Закон. 2025. № 10. С. 36–46.

Тузов Д. О.

The procedural problem of eadem res („case identity“) was well known to Roman jurisprudence, which formulated the well-known principle bis de eadem re ne sit actio. The phenomenon of eadem res occurred when the claim was based on the same legal or factual premises as the claim filed earlier, so that two claims were turned out to be aimed at the same practical result. In such a situation, the legal relationships that are the subject of litigation in two claims externally different in its premises, subject matter or persons, were considered identical in their essence, and therefore the case was considered „one and the same“. This predetermined, according to the views of Roman lawyers, the inadmissibility of a subsequent lawsuit.
In recent decades, the complete absence of any normative basis in Russian law in this regard has led the practice of the Supreme Court to develop a principle equivalent to the Roman one, including the fundamental concept of eadem res, on which this principle has always been based.
In this article, this path of domestic judicial practice is considered in relation to two types of competition of claims for which the Supreme Court has already formulated its legal positions, namely, competition between a claim for restitution in connection with the invalidity of a transaction and vindication of a thing (the subject of the same transaction) from a third party, who possess it, or a tort claim for damages caused to a legal entity acting as one of the parties to the same transaction, by its body that concluded this transaction. It is concluded that the criterion of alternativeness between two competing claims and the purpose of recognising the offsetting effect of satisfying one of them in relation to the other, adopted by the Supreme Court in developing this principle and the related concept of  adem res, are essentially the same as the Roman ones.

Keywords: гражданское право, гражданский процесс, неосновательное обогащение, Roman law, римское право, civil procedure, недействительность сделки, реституция, Russian law, гражданско-правовая ответственность, civil liability, российское право, виндикация, vindication, restitution, unjustified enrichment, tort obligation, деликтное обязательство, civil law, invalidity of a transaction, eadem res, eadem res