In one of its recent decisions the Supreme Court(1) dealt with the limits of preclusion or res judicata.

Res judicata's power stems from its binding effect which precludes any further proceedings, gathering/taking of evidence or re-examinations of the final claims – in the case at hand, legal relationships.

In essence, res judicata applies if both the litigants and the facts of the case which generate a legal basis for a claim are aligned with the necessary legal qualifications.

According to the subjective limits of preclusion, the effects of res judicata encompass the litigants, their legal successors and certain other persons to which the legal effects of the respective court's decision are extended in accordance with the law. Therefore, res judicata takes effect − apart from cases of extended and absolute legal force – only between the same parties (inter partes).

The binding effect is limited to the main questions dealt with in the previously decided case; however, it does not extend to the preliminary questions evaluated and considered in the previous proceedings.

The binding effect also covers the grounds for the decision – including the findings of facts – provided that they are necessary for the specific judgment. Therefore, it also encompasses the allegations of fact that confirm or negate the factual elements generating the legal grounds for the claim represented in the previous proceedings.

The decision on a mere payment request in the previous proceedings, in principle, has no binding effect beyond the underlying right and legal relationship, respectively. In those cases, the legal reasoning does not apply beyond what is necessary to establish the individual binding force.

For further information on this topic please contact Klaus Oblin at Oblin Melichar by telephone (+43 1 505 37 05) or email (klaus.oblin[email protected]). The Oblin Melichar website can be accessed at


(1) November 24 2015, file 1 Ob 28/15x.