¹ E.g. “…res judicata, one of the most complex in the whole field of procedural and substantive law.” [1940] Wisconsin L.R. 234, 257. “The interrelation of lawsuits is one of the most troublesome, yet least commented upon, areas of the law.” Vestal, , “The Constitution and Preclusion/Res Judicata” (1963) 62 Mich. L.R. 33.CrossRefGoogle Scholar See also Millar, , “The Premises of the Judgment as Res Judicata in Continental and Anglo-American Law” (1940) 39 Mich L.R. 262.Google Scholar

² For a classification of judgments according to these texts see e.g.—Halsbury, , Laws of England, vol. 15, pp. 178–84 (1956)Google Scholar; Restatement of the Law of Judgments, Ch. 1 (1942); Freeman, , A Treatise of the Law of Judgments, vol. I, sec. 16, vol. III, sec. 1517 (1925)Google Scholar; The Municipality of Ramat-Gan v. Pardes Yanai Inc. (1956) 10 P.D. 1804, 1814–15; Attiah v. Berda (1955) 9 P.D. 1205, 1214–15; Korn v. Korn (1960) 14 P.D. 997, 1007.

³ See Bower, , The Doctrine of Res Judicata, 1–2, 3 (1924)Google Scholar; James, , Civil Procedure, sec. 11.9 (1965)Google Scholar; Attiah v. Berda (supra) 1211, per Cheshin, J.; Kermesh v. Debi (1957) 11 P.D. 1336, 1344Google Scholar, per Landau, J.; Zucker v. Leibovitz (1964) 18 P.D. 337, 345–46 per Halevy J.Google Scholar

⁴ See James, op. cit., particularly 550, 552; Mugrabi v. Vardimon (1957) 11 P.D. 1242, 1250.

⁵ As to res judicata pleaded by a person who was not a party to the former adjudication, see infra, 584–49.

⁶ Millar, , “The Historical Relation of Estoppel by Record to Res Judicata” (1940) 35 Ill. L.R. 41Google Scholar; Bower, op. cit., 5–6; “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818, 820–21. See also Hoffman, , South African Law of Evidence, ch. 16 (1963).Google Scholar It is noteworthy that on several occasions, English courts found it appropriate to point out the similarity in principle between their system and the Roman legal system in the field of res judicata. See e.g., Barrs v. Jackson (1842) 1 Y & C 585, 588, 589; Nelson v. Couch (1863) 15 C.B. (N.S.) 99, 108. In an appeal from Bengal, the Privy Council found that the principle fit the spirit of Hindu law, as described by the Commentators Vigmanesvara and Nilakantha. (From a Law Report published by the London Times of March 17, 1916 brought by Bower, op. cit., 218, note (v) ).

⁷ As to possible involvement of federal constitutional concepts (particularly the “full faith and credit” clause) in the area of res judicata, see Vestal, op. cit.; Boock, , “Res Judicata—Federal Courts” (1965) 51 Cornell L.Q. 16Google Scholar; Moore, I. B., Federal Practice, 2nd ed. 1965, § 0.401.Google Scholar

⁸ The Mejelle, the Civil Law of Palestine and Transjordan (Hooper's translation), sec. 1837.

⁹ See Ginossar, , Annotated Laws of Palestine, vol. V, pp. 115–29.Google Scholar Sec. 1837 is once mentioned in a case of 1936: Aidey v. Amr (1937) 4 P.L.R. 142.

¹⁰ Mizrachi v. Rachamin (1951) 5 P.D. 540, 545, per Landau J.

¹¹ Felman v. Shachav (1952) 6 P.D. 313.

¹² Id., 317–18. While the English rule of res judicata speaks to the parties, that they are estopped from relitigating matters that have been adjudicated, sec. 1837 of the Mejelle—like certain Continental legal systems—forbids, in general terms, the rehearing of the same action, i.e. speaks to the court. There is a further distinction of extent and application. The provisions of the Mejelle deal only with identical actions or claims. Id. at 317. Consequently, the Anglo-American doctrines of issue estoppel or collateral estoppel cannot be found there.

¹³ See e.g. Nakara v. The Minister of Interior (1953) 7 P.D. 955, 958; Heiman v. Shafir (1956) 10 P.D. 729, 732; Amrani v. A.G. (1961) 15 P.D. 594, 602.

¹⁴ For instance Mugrabi v. Vardimon (1957) 11 P.D. 1292; Ciuiyah (1960) 14 P.D. 1093; Zuker v. Leibovitz (1964) 18 P.D. 357.

¹⁵ Judge Silberg, however, continues to refer to that provision in the Mejelle which the other judges consider as impliedly repealed. See Shor v. State of Israel ( (1964) vol. 3, 18 P.D. 341, 345). As a matter of fact Judge Silberg's opinion in the latter case follows his former one in Felman v. Shachau (supra n. 11), but Judge Halevy observes in the Shor Case that he would not resort to sec. 1837 of the Mejelle, “because, respectfully, I agree with Judge Landau in [Mizrachi v. Rachamim] …that this section has become obsolete”. ( (1964) vol. 3, 18 P.D. at 349).

¹⁶ “The rigidity of res judicata is recognized in the maxim: ‘res judicata facit ex albo negrum, ex negro album, ex curvo rectum ex recto curvum’” (1933) 33 Col. L.R. 1404, 1413. “The idea is that the application of the principle makes white, black; black, white; the crooked, straight and the straight, crooked.” Paul, and Zimet, , “Res Judicata in Federal Taxation” in Paul, Selected Studies in Federal Taxation, 109–10 (2nd series, 1938).Google Scholar See also Scott, , “Collateral Estoppel by Judgment, (1942) 56 Harv. L.R. 1CrossRefGoogle Scholar; Angel v. Bullington, 330 U.S. 183, 202–03 (1946); A.G. v. Mezan (1965) vol. 3, 19 P.D. 32.

¹⁷ VI Coke 7a.

¹⁸ Sparry's Case, 5 Co. 61; Bower, , Res Judicata 4 (1924)Google Scholar; Felman v. Shachav (1952) 6 P.D. 313, 321, 323; Atiah v. Berda (1955) 9 P.D. 1205, 1211; Heiman v. Shafir (1956) 10 P.D. 729, 733; Knopf v. Popper (1956) 10 P.D. 785, 793; Rosenfeld v. Shafir Inc. (1960) 14 P.D. 915, 917; Amrani v. A.G. (1961) 15 P.D. 594; Mercaz Valovelsky v. The Custodian of Absentees' Property (1962) 16 P.D. 2156, 2165; A.G. v. Mezan (1965) vol. 3, 19 P.D. 32.

¹⁹ See Von Moschzisker, , “Res Judicata” (1929) 38 Yale L.J. 299CrossRefGoogle Scholar; Pound, , Jurisprudence, vol. V, pp. 602–03 (1959).Google Scholar

²⁰ See “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818, 827–28. As to the similar rationale in statutes of limitation, see e.g. “Developments in the Law—Statutes of Limitation” (1950) 63 Harv. 1177, 1185.

²¹ See Vestal, , “Rationale of Preclusion” (1964) 9 St. Louis U.L.J. 29, 34.Google ScholarCf. the reasons given to statutes of limitation: “There comes a time when he [the defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not be called on to resist a claim when ‘evidence has been lost, memories have faded, and witnesses have disappeared’.” “Developments in the Law—Statutes of Limitation” (1950) 63 Harv. L.R. 1177, 1185.

²² See Vestal, supra note 6, at pp. 31–32. Professor Cleary, however, does not accept this reason, arguing that if the burden on courts is so very heavy, the public can afford to increase the number of judges. Expenses of the judiciary are but a small item of a State's budget. Cleary, , “Res Judicata Re-examined” (1948) 57 Yale L.J. 339, 348.CrossRefGoogle Scholar

²³ Moschzisker, supra, note 4, at p. 300, finds this aspect as a common background of the doctrines of res judicata and stare decisis.

²⁴ “The doctrine of res judicata…produces certainty as to individual rights and gives dignity and respect to judicial proceedings.” State Hospital v. Consolidated Water Co., 267 Pa. 29, 38 (1920). It does not mean that the law is always against inconsistent judgments. The recognition of more than one opinion at the same trial, the majority and the minority, may indicate a possibility of such inconsistency although there is only one effective judgment. By granting a right of appeal the law in fact invites such possible inconsistencies. In all these cases, however, we deal with various proceedings within a single action. Since the whole process of one and the same action has not yet come to an end, the position of the court is not really undermined. Once all the proceedings have been exhausted and a final judgment has been rendered, the law will not allow the reopening of the case. One reason being to avoid inconsistencies between two judgments.

²⁵ Feitcher v. Shkolnic (1955) 10 P.M. 69. It was an appellate District Court composed of three judges and each delivered a separate opinion. One decided that of two inconsistent judgments the first constituted res judicata. Another judge was of the opinion that the judgment that was later in time should prevail, relying on American authorities. The third judge adopted a different view also found in American sources that “where there is an estoppel against an estoppel, it ‘setteth the matter at large’…and in such cases both parties may assert their claims anew.” On appeal only one of the Supreme Court Justices expressed his opinion on this matter, concurring with the view of the third judge of the lower court. The appeal was decided on a different ground. Feitcher v. Shkolnic (1956) 10 P.D. 1566. Incidentally, in French law the later judgment governs, “… it being assumed that the parties have renounced the benefits of the earlier one”. Planiol, , Treatise on the Civil Law, vol. 2, part 1, No. 54 A(2) (p. 35Google Scholar) (The Louisiana English Translation from the 11th ed. of 1939, published in 1959).

²⁶ Art. 1351 in the French Code Civil is also construed as a legal presumption of truth. See Planiol, op. cit., sec. 54 A(2). For frequent reliance on this idea by the Supreme Court in Israel see Felman v. Shachav (1952) 6 P.D. 313, 321, 323; Knopf v. Fofer (1956) 10 P.D. 785, 793; Mugrabi v. Vardimon (1957) 11 P.D. 1242 1250.

²⁷ This is in effect, a restriction of the rule of “judgments on the merits”.

²⁸ See James, , Civil Procedure, sec. 11.1 (1965).Google Scholar

²⁹ A related problem arises when parties agree between themselves to split litigation, that is to have more than one trial on a single cause of action. “The possibility of overburdening the courts by purely capricious agreements to split seems not to have been much considered”. “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818, 830, note 74.

³⁰ See Bower, , Res Judicata, Part I, ch. IX; part II, ch. IX (1924)Google Scholar; Halsbury, , Laws of England, vol. 15, sec. 381, pp. 202–03Google Scholar (3rd ed. 1956); Cleary, supra, note 7, 57 Yale L.J. at 348; “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. at 830, note 74 and accompanying text; Attiah v. Berda (1955) 9 P.D. 1205, 1211; Kermesh v. Debi (1957) 11 P.D. 1336, 1342; Zuker v. Leibovitz (1964) 18 P.D. 337, 353.

³¹ Restatement of the Law of Judgments, sec. 1, Comment a (1942).

³² In addition to the material discussed in this chapter, the following seems to support the same conclusion that the public interest is the controlling consideration: In Marsh v. Pier, 4 Rawle 273 (Pa. 1833), res judicata had not been pleaded but the prior judgment was submitted in evidence. Yet the Supreme Court in Pennsylvania decided that the second court ought to be bound by the decision of the first in the same matter. “The maxim, nemo debet bis vexari…being considered, as doubtless it was, established for the protection and benefit of the party, that he may therefore waive it,…But then it ought to be recollected that the community has also an equal interest and concern in the matter, on account of its peace and quiet; which ought not to be disturbed at the will and pleasure of every individual, in order to gratify vindictive and litigious feelings” (p. 288). Otherwise—”…the rule or maxim expedit reipublicae ut sit finis litium, which is as old as the law itself, and a part of it, will be exploded and entirely disregarded.” (id.)

See also—”The purpose underlying res adjudicata is more than to serve simply the interest of one who may see fit to invoke the rule; it is a measure of public policy, based on the principle that the general welfare requires litigation not to be interminable”—State Hospital v. Consolidated Water Co., 267 Pa. 29, 37 (1920). “Primarily, the rule is one of public policy, and secondarily, of private benefit to individual litigants…of the two principles which it comprehends, the protection from the annoyance of repeated litigation… is, after all, only an incident of the first principle, that the best interests of society demand that litigation be concluded”.—Moschzisker, , “Res Judicata” (1929) 38 Yale L.J. 299.CrossRefGoogle Scholar

³³ See supra, 540.

³⁴ Dealing with the operation of the judgment in the Roman procedure, Engelmann writes: “The ‘sententia judicis’ extinguishes the procedural right to judgment, in satisfying it. That right the judge cannot renew, even by consent of the parties; the judgment is beyond his recall. It was this notion that the Roman law took into account in making the office of the judge come to an end with the promulgation of the judgment”—Engelmann, , A History of Continental Civil Procedure, 365 (Boston 1927Google Scholar) (Emphasis added).

³⁵ See James, , Civil Procedure, sec. 1.2 (1965)Google Scholar; Harnon, “Summoning of Witnesses on the Initiative of the Court” (1963) 19 HaPraklit 246Google Scholar (in Hebrew).

³⁶ E.g.—”…it is submitted, the court's refusal to grant appropriate relief, or to adopt a factual ground which it believes to be true or a legal theory which it finds applicable, simply because the party did not urge it, would detract from the moral force of adjudication rather than preserve it. Here, it is submitted, the court should take initiative to make the most just decision of which the case is capable.” James, op. cit. at 6.

³⁷ Scott, , “Collateral Estoppel by Judgment” (1942) 56 Harv. L.R. 1, 3CrossRefGoogle Scholar, note 4.

³⁸ Many years before it had been said:

“The effect of a judgment…even as an estoppel, is very different from an estoppel arising from the act of the party himself…which may, or may not be enforced at the election of the other party; because, whatever the parties have done by compact, they may undo by the same means. But a judgment of a proper court…puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon the courts and juries ever afterwards, as long as it shall remain in force and unreversed”—Marsh v. Pier, 4 Rawle 273, 289 (Pa. 1833).

Coke traces the origin of the term estoppel:

“‘Estoppel commeth of the French word estoupe, from whence the English word stopped: and it is called an estoppel or conclusion because a man's owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truth”—Institutes, vol. I, Bk. 3, sec. 667.

As noted earlier (p. 540) that aspect of preclusion came into the English law on the influence of medieval Germanic law. Since the preclusion came as a result of the parties' behaviour and was based on their pleadings and statements in court, the use of the term estoppel was correct and appropriate. Even at the beginning of the 19th century, one finds in one of the leading judgments in this field that:—

“It is not the recovery, but the matter alleged by the party and upon which the recovery proceeds, which creates the estoppel”—Outram v. Morewood, 3 East 346, 355 (1803). See also Millar, , “The Historical Relation of Estoppel by Record to Res Judicata” (1940) 35 Ill. L.R. 41.Google Scholar

³⁹ See e.g., Cross, , Evidence, ch. XII (2nd. ed. 1963)Google Scholar; Haetzni v. Ben-Gurion (1957) 11 P.D. 403.

⁴⁰ The Municipality of Ramat-Gan v. Pardess Yanai Ltd. (1956) 10 P.D. 1804, 1812–13; Freeman, , Judgments, vol. I, sec. 428 (5th ed. 1925).Google Scholar

⁴¹ The notion is found in the Year Books: 1479 Y.B. 18 Edw. IV, 1, pl. 4, Co. Litt. 352a. See also James v. Landon, Cro. Eliz. 36, 78 Eng. Rep. 302 (1585); Petrie v. Nuttall, 11 Ex. 569, 156 Eng. Rep. 957, 960 (1856); Note, , “Privity and Mutuality in the Doctrine of Res Judicata (1926) 35 Yale L.J. 607.Google Scholar

⁴² See e.g. Halsbury, supra note 14, at p. 201.

⁴³ In Israel too, some of the recent judgments reflect these American innovations, revealing a certain amount of readiness to deviate from the principle of mutuality. See supra n. 40, The Municipality of Ramat Gan v. Pardess Yani Ltd. (1956) 10 P.D. 1804; n. 14, Zuker v. Liebovitz (1964) 18 P.D. 357; Shor v. State of Israel (1964) vol. 3, 18 P.D. 341.

⁴⁴ In Zuker v. Leibovitz (supra n. 15) Sussman J. uses the same reason but in order to justify his opposition for the innovation in the “he had his day in court”; Sussman J. prefers to limit the exceptions to the principle of mutuality. (See (1964) 18 vol. 1, P.D. at pp. 353, 354).

⁴⁵ See Vestal, supra, note 21, at p. 31.

⁴⁶ See Millar, , “The Premises of the Judgment as Res Judicata in Continental and Anglo-American Law” (1940) 39 Mich. L.R. 1, 7–8Google Scholar; Cappelletti, and Perillo, , Civil Procedure in Italy, 9.13.e (1965)Google Scholar, but see id., text accompanying note 108.

⁴⁷ This part draws largely from James, , Civil Procedure, sec. 1.3, 2.3, 10.2, 11.9 (1965) and “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818.Google Scholar

⁴⁸ The quotations are from the leading case Cromwell v. County of Sac, 94 U.S. 351, 24 L. Ed. 195 (1876).

⁴⁹ See e.g. Clark, , “The Code of Action” (1924) 33 Yale L.J. 817CrossRefGoogle Scholar; Clark, , “The Complaint in Code Pleading” (1926) 35 Yale L.J. 259CrossRefGoogle Scholar; Clark, , “The Cause of Action” (1934) 82 U. Pa. L.R. 354Google Scholar; Clark, , Code Pleading, secs. 19, 73–75 (2nd ed. 1947)Google Scholar; Pemeroy, , Code Remedies, secs. 346–56, 412–17 (5th ed. 1929)Google Scholar; McCaskill, , “Actions and Causes of Action” (1925) 34 Yale L.J. 614CrossRefGoogle Scholar; Arnold, , “The Code‘Cause of Actions’ Clarified by U.S. Supreme Court” (1933) 19 Am. B.A.J. 215Google Scholar; Gavit, , “A ‘Pragamatic Definition’ of the ‘Cause of Action’” (1933) 82 U. Pa. L.R. 129Google Scholar; “The Cause of Action—A Reply” [to Clark's article which appeared in the same volume, see supra], (1934) 82 U. Pa. L.R. 695; Schopflocher, , “What is a Single Cause of Action for the Purpose of the Doctrine of Res Judicata?” (1942) 21 Ore. L.R. 319Google Scholar; Cleary, , “Res Judicata Re-examined” (1948) 57 Yale L.J. 339.CrossRefGoogle Scholar

⁵⁰ U.S. v. Memphis Cotton Oil Co., 288 U.S. 62, 67–68, 53 S.Ct. 278, 280 (1933).

⁵¹ See Halsbury, , Laws of England, 3rd ed. vol. 1, pp. 6–7, 14–15; vol. 15, pp. 190–191Google Scholar; Williams, G., “Survival of ‘Cause of Actions’” (1944) 7 Mod. L.R. 148.Google Scholar

⁵² See e.g. “Shimshon”, Inc. v. Ayun (1963) 17 P.D. 2017–22; Jarach v. Jarach (1963) 17 P.D. 2617, 2624–25; In the Estate of Bernstein v. Oroth Ltd. (1964) 18 P.D. 306, 311.

⁵³ Cleary, , “Res Judicata Re-examined” (1948) 57 Yale L.J. 339, 341–42.CrossRefGoogle Scholar

⁵⁴ “… it is time that lawyers… agreed to use the phrase ‘cause of action’ in one meaning only, and invented other phrases to express its other meanings”—Williams, G., “Survival of ‘Cause of Actions’” (1944) 7 Mod. L.R. 148.Google Scholar

⁵⁵ There are controversial views as to whether it constitutes a “constructive draftsmanship” or “an evasion of a fine opportunity for clarification and the ending of confusion”. See Clark, , Code Pleading, 146–47, (2d ed. 1947).Google Scholar In a recent article it is suggested that the terminological change in the Federal Rules may result in broadening the Federal doctrine of res judicata. Boock, , “Res Judicata—Federal Courts” (1965) 51 Cornell L.R. 96.Google Scholar But the Federal Rules do not state the effect of a former adjudication or judgment.

⁵⁶ This question is posed in Louisell, and Hazard, , Cases and Materials on Pleading and Procedure 565–66 (1962).Google Scholar

⁵⁷ See supra n. 56.

⁵⁸ “The effort to evolve a satisfactory definition of a cause of action has produced some of the finest examples of the possibilities for philosophical development in the field of procedure. The scholarly products of those who have already plowed the ground leave little for the latecomer to do, unless perchance he may be able to raise a different crop out of the same soil.” Cleary, op. cit., 57 Yale L.J. at 340.

⁵⁹ Jackson v. Spittall (1870) L.R. 5 C.P. 542.

⁶⁰ Cooke v. Gill (1873) L.R. 8 C.P. 107; Read v. Brown (1888) 22 Q.B.D. 128, CA.; Dipple v. Dipple [1942] 1 All E.R. 234; Trower & Sons, Ltd. v. Ripstein, [1944] A.C. 354.

⁶¹ See Restatement of the Law of Judgments, sec. 62, Comment c (1942); James, , Civil Procedure, sec. 11.10, p. 555 (1965).Google Scholar

⁶² See Brunsden v. Humphrey (1884) 14 Q.B.D. 141; Darley Main Colliery Co. v. Mitchell (1886) 11 App. Cas. 127; Derrick v. Williams [1939] 2 All E.R. 559. See also Bower, , The Doctrine of Res Judicata, sec. 331 (1924).Google Scholar

⁶³ Bower, op. cit., at 195.

⁶⁴ Brunsden v. Humphrey (1889) 14 Q.B.D. 141, 147 relying on previous decisions.

⁶⁵ See Brunsden v. Humphrey, supra; Bower, op. cit., pp. 193–95. This does not mean the courts will never react towards parties harassing them in vain. Yet this reaction is presumably not based on the doctrine of res judicata but on the inherent powers of courts to remove any disturbance or obstacle which might impede their normal functioning—one of these auxiliary powers essential to the due administration of law. See Bower, supra, note 115, Appendix A (211); Vitgov v. Timmer (1955) 17 P.E. 44; (1951–52) Bachar v. A.G. 6 P.E. 422.

⁶⁶ Brunsden v. Humphrey (1884) 14 Q.B.D. 141.

⁶⁷ Daniels (H.E.) Ltd. v. Carmel Exporters and Importers Ltd. [1953] 2 All E.R. 401, 404; [1953] 2. Q.B. 242.

⁶⁸ Guest v. Warren (1854), 9 Exch. 379; 156 Eng. Rep. 161.

⁶⁹ N. 49, supra.

⁷⁰ See the list of sources—cases and articles brought by Clark in the second edition of his book Code Pleading (pp. 141–146), where he answers the critical comments made to his views since his first edition and also adds to the discussion.

⁷¹ “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818, 824–25.

⁷² This is Professor McCaskill's definition (34 Yale L.J. 614, 638) discussed by Judge Clark in his book, at 132–34.

⁷³ This is a quotation from Pomeroy, Code Remedies, sec. 347 (5th ed., 1929).

⁷⁴ Those are the main elements in the definition presented by Judge Clark himself as analyzed in his book, op. cit. See in particular 137–46.

⁷⁵ James, , Civil Procedure, sec. 11.10 (1965).Google Scholar

⁷⁶ See p. 553.

⁷⁷ In the U.S. see Clark, op. cit., 137; James, op. cit., sec. 1.6, 2.5, 11.10. In Israel, see Rules of Civil Procedure, 1963, Rule 7(5).

⁷⁸ See Cleary, , “Res Judicata Re-examined” (1948) 57 Yale L.J. 339, 341CrossRefGoogle Scholar; Prescription Law, 1958, 12 L.S.I., 129, sec. 8, 11. But see “Shimshon”, Ltd. v. Ayon (1963) 17 P.D. 2109, 2032 referring to sec. 15 of that law.

⁷⁹ (1948) 57 Yale L.J. 339, 340.

⁸⁰ See also “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818, 825. Cf. Restatement of the Law of Judgments, sec. 61, Comment a (1942).

⁸¹ On this problem see Vasu v. Kohler, Inc., 145 Ohio St. 321, 61 N.E. 2d 707 (1945); Rush v. City of Maple Heights, 167 Ohio St. 221, 147 N.E. 2d 599 (1958); Restatement, op. cit., sec. 61, 62 f: Clark, op. cit., pp. 488, 489; 62 A.L.R. 2d, pp. 977–1009; James, op. cit., sec. 11.11.

⁸² (1884) 14 Q.B.D. 141.

⁸³ Id., p. 147.

⁸⁴ Id., p. 151.

⁸⁵ See the authorities listed in n. 81 supra.

⁸⁶ 14 Q.B.D. at 152–53.

⁸⁷ See also “Developments in the Law—Res Judicata” (1952) 65 Harv. L.R. 818, 825, n. 44.

⁸⁸ But see James, op. cit., pp. 558–60. It seems that the Restatement of Judgments follows the majority rule (sec. 62). Furthermore, even when a person suffers injuries from two or more acts of negligence that occurred in substantially the same accident, it constitutes only one single cause of action (sec. 62, comment f).

⁸⁹ (1948) 57 Yale L.J. 339, 340.

⁹⁰ Id., p. 343.

⁹¹ Id., p. 346.

⁹² Id., p. 349.

⁹³ See James, op. cit., sec. 11.10, p. 557.

⁹⁴ See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 75 Sup. Ct. 865 (1955); Note, “Recent Trends in Res Judicata” [1955] U. Ill. L.F. 627.

⁹⁵ “[D]iscretionary… is but a softer word for arbitrary…” Walcot's Case, 90 Eng. Rep. 1275 (1793).

⁹⁶ E.g., Mizrachi v. Rachamim (1950) 5 P.D. 540; Mugrabi v. Vardimon (1957) 11 P.D. 1242; Yarmitzki v. Ma'aini (1959) 13 P.D. 1479; Jarach v. Jarach (1963) 17 P.D 1617.

It should be noted, however, that Mr. Justice Silberg defined that aspect of res judicata by using the test of identity of remedies or relief (Felman v. Shachav (1952) 6 P.D. 313, 324. See also Amrani v. A.G. (1961) 15 P.D. 594, 598 per Berinson J.). But Judge Witkon, in a District Court judgment, correctly remarked that the right test should be identity in causes of action and not remedies. Levy v. Assicurzioni Generali de Trieste ( (1955) 10 P.M. 36). Indeed according to the overwhelming authorities the rules of res judicata are defined by the term “cause of action” as it is clearly found in the English law. Nevertheless, even lately Justice Silberg still does not use cause of action in describing the doctrine of res judicata. A.G. v. Mezan (.(1965) vol. 3, 19 P.D. 32) where the Hebrew word 'atira is used meaning demand, petition or relief.

⁹⁷ See Bitom Co. Inc. v. Manheim (1959) 13 P.D. 937, 943; Jarach v. Jarach (1963) 17 P.D. 2617; Estate of Bernstein v. “Oroth”, Inc. (1964) vol. 1, 18 P.D. 306, 311; Badichi v. Badichi (1964) vol. 2, 18 P.D. 412, 417–18.

⁹⁸ See supra, 556.

⁹⁹ See supra, 557.

¹⁰⁰ Nehushtan, Ltd. v. Loven, Ltd. (1956) 10 P.D. 1298, 1301. See also supra, n. 97, Jarach v. Jarach (1963) 17 P.D. 2617 at 2424–25.

¹⁰¹ James, for instance, devotes a whole section to “Rules ameliorating the rigors of res judicata…” James, , Civil Procedure, § 11.35, pp. 603–10 (1965).Google Scholar

¹⁰² “… there is no difficulty in seeing what, in its strict and proper sense, the plea of res judicata means. The words ‘res judicata’ explain themselves. If the res—the thing actually and directly in dispute—has been already adjudicated upon, of course by a competent Court, it cannot be litigated again.” Ord v. Ord [1923] 2 K.B. 432, 439. But further the court states the traditional broader definition of res judicata.

¹⁰³ See supra, 558.

¹⁰⁴ See e.g. in Israel, Rules of Civil Procedure, 1963, Rule 46.

¹⁰⁵ See also supra, 547.

¹⁰⁶ See supra, 540.

¹⁰⁷ See Cleary, op. cit., supra n. 31, 57 Yale L.J. at pp. 347–48. But see Chadbourn, and Levin, , Civil Procedure, Cases and Materials, p. 583, note 10 (1961).Google Scholar

¹⁰⁸ It is noteworthy that though Cleary severely criticises the prevailing trend to broaden the definition of [a] cause of action, he does not go all the way and suggest the limitations of res judicata to cases of complete identity of actions. He has said in his conclusion:

“If the subject matter of the second action is so inextricably involved with that of the first case that it must have entered into the composition of the first judgment then further consideration should be barred by res judicata.” 57 Yale L.J. at pp. 349–50.

It thus seems that even Cleary might consider the eventuality, though infrequent, of res judicata barring litigation on matters not raised in the first action. See also James, , Civil Procedure, sec. 11.11, p. 556, n. 17 (1965).Google Scholar