Debt, Judgment, and Security: Finality in Litigation from an Anglo-German Perspective

Abstract

This paper compares English and German law in the context of a creditor who has recovered money judgment for part of a contractual debt, then seeks either to sue for the balance or to enforce a pre-existing security. Under English law, a second action for the balance is precluded by the doctrine of merger in rem judicatam, but this paper shows that merger is a procedural bar rather than a substantive rule that extinguishes the underlying debt—a point demonstrated most clearly by the position of a secured creditor post judgment. On the other hand, while German law is generally tolerant of claim splitting, it nevertheless contains several mechanisms—drawn from the res judicata doctrine and beyond—which may, in certain circumstances, preclude a second action for the balance. This comparative study reveals that, not only do the two systems diverge in how they secure finality in litigation, but they may also—at a more basic level—understand that very principle differently.