Almost every Polish adult knows the difference between final and non-final judgments. A final judgment can no longer be appealed[1], and the same matter cannot be litigated again[2]. The case is closed[3]. But finality operates within that case, which may relate to others. A dispute may have several strands, only one decided, or resolving one claim may enable further claims. Will the first judgment affect the next case?
Binding effect
Intuitively it should. A court should not reinvent the wheel after already deciding something. Inconsistent outcomes do not inspire public confidence. Yet related cases may differ in evidence or argument. If a party lost for lack of proof, can it present more evidence next time? Can better legal arguments win an issue previously lost?
The relevant concept is the binding effect of final rulings[4]. Article 365 § 1 of the Code of Civil Procedure binds parties, the issuing court, other courts, state and administrative authorities and, where provided by law, others. The intention seems clear, but the devil is in the detail.
What binds?
The provision says a “final ruling”. What is a judgment? It is a complex document: identification of court, composition and date; the decision awarding money, dismissing a claim, ordering action or declaring a contract nonexistent. Together these form the operative part[5], although that term often means the decision alone. Reasons separately state facts found, evidence relied on and rejected, and the legal basis with provisions[6].
Generally only the operative part binds, establishing the individual legal rule. Reasons merely explain why. Formally they are not part of the judgment: the Code speaks of serving a judgment “with reasons”, and pronouncement consists of reading the operative part. At that moment nothing else exists. Reasons may never be written, usually requiring a request. A judgment can exist without them. The binding final ruling is therefore the operative part.
If one court finally orders payment of PLN 100,000, others must accept that obligation. If it dismisses that claim, others accept no obligation to pay it. Difficulties emerge in two examples. X and Y contract. X alleges defective performance causing PLN 100,000 loss, but sues for only PLN 20,000 to reduce fees.
Example 1:
X wins finally. Reasons find defective performance and Y’s fault. X then sues for the remaining PLN 80,000. Must X win again?
Example 2:
X loses finally because Y is not at fault. X sues for another PLN 10,000 with new evidence of fault. Must X lose again?
If “only the operative part binds” is read strictly, both answers are no. In example 1, fault appears only in reasons. In example 2, absence of fault likewise appears only there. The operative part says only that PLN 20,000 need not be paid.
The traditional view
Traditionally, courts extend binding effect to reasons insofar as necessary to explain and individualise the decision’s scope[7]. Without reasons, we usually cannot know the legal basis of the obligation. The operative part says Y must or need not pay PLN 20,000, but not why or under which relationship. Reasons identify the individual norm: under the facts found, a party must or need not behave in a certain way. Later courts between the same parties must accept the legal issue as resolved previously[8].
In example 1, Y must therefore pay the remaining PLN 80,000 because fault was established. In example 2, no compensation is due because fault was excluded, so the later claim must fail too.
Can new evidence alter this? The traditional answer is no. Otherwise the earlier final judgment loses practical significance. Losing parties seldom repeat exactly the same evidence; they usually strengthen their case in response to adverse reasons. The same issue cannot be re-examined, and even taking evidence on it is prohibited[9]. Finality precludes all material within the claim’s factual basis, whether actually raised or not. Only later facts and those outside that basis escape preclusion[10].
Thus new evidence denying Y’s fault in example 1 should be disregarded. But evidence that the contract is invalid, for example due to defective representation or conflict with principles of social coexistence, could be heard. In example 2, new evidence of fault is excluded, but X could prove Y’s subsequent acknowledgment of the remaining debt.
A new direction?
The traditional line continues, but a contrary Supreme Court approach is gaining ground. At its strongest, it confines binding effect to the operative part and specific relief: another court accepts only that the named person must or need not pay the specified amount. It is not bound by another case’s assessment of the underlying legal relationship[11]. Preliminary issues such as contractual invalidity or ineffectiveness are not covered[12].
Our examples would therefore leave fault and even defective performance open. X could win the first case and lose the second, or lose first and win later.
The Court argues that wider effect lacks an express statutory basis. Expectations of consistent decisions and confidence in justice alone are insufficient[13].
Theoretically strong, this contributes little in practice. Y’s duty to pay PLN 20,000 matters in that case, but not the later PLN 80,000 claim. What matters there is whether the established liability principle binds. The Court says no. What binding effect remains? Effectively none. Paradoxically, a strict literal interpretation makes Article 365 § 1 practically dead despite its express statement that other courts are bound.
Is the matter truly over, then? At least until the mainstream decisively returns to the old approach, not necessarily.
[1] Procedural scholarship calls this formal finality.
[2] Substantive finality or res judicata.
[3] Unless cassation is brought. This concerns typical cases, leaving aside reopening or extraordinary Supreme Court review.
[4] Some scholars include binding effect within substantive finality, distinguishing its negative aspect, res judicata preventing another identical case, and positive aspect, binding courts and authorities.
[5] Article 325 of the Code.
[6] Article 3271 § 1.
[7] Supreme Court judgment of 20 June 2022, II CSKP 51/22, LEX no. 3391949.
[8] Supreme Court judgment of 15 February 2007, II CSK 452/06, OSNC-ZD 2008, no. 1, item 20.
[9] Ibid.
[10] Supreme Court resolutions of 16 November 1954, I Co 41/54, OSN 1956, no. 1, item 3; 23 May 2012, III CZP 16/12, OSNC 2012, no. 11, item 129; 2 February 2011, III CZP 128/10, OSNC 2011, no. 10, item 108; Warsaw Court of Appeal judgment of 26 July 2018, I ACa 312/17, LEX no. 2564268.
[11] Supreme Court order of 11 July 2024, I CSK 403/23, LEX no. 3735937.
[12] Supreme Court judgment of 17 March 2023, II CSKP 697/22, OSNC 2023, no. 10, item 101.
[13] Reasons for Supreme Court judgment of 13 May 2021, V CSKP 73/21, OSNC 2022, no. 2, item 19.
