Facts
The case concerns a tenancy dispute between the landlord B. and the tenant A. AG. In the conciliation proceedings, the tenant as the plaintiff filed a claim, whereupon the landlord filed a counterclaim. Since no settlement was reached, the conciliation authority granted the tenant the authorization to bring an action. However, the tenant did not prosecute its claim.
Thereupon, the landlord as the counterclaimant, based on the authorization to bring an action granted to the tenant, filed a claim with the District Court. The District Court and subsequently the Cantonal Court of Lucerne proceeded with this claim.
The tenant filed an appeal against the decision of the Cantonal Court with the Federal Supreme Court.
Considerations
The Federal Supreme Court had to clarify whether the counterclaimant, based on the authorization to bring an action issued to the main claimant, can approach the court independently of the main claimant, or whether the authorization to bring an action becomes invalid if the main claimant fails to file the claim within the time limit.
The Federal Supreme Court concluded that the wording of Art. 209 para. 1 lit. b and Art. 14 para. 2 of the Swiss Civil Procedure Code (CPC) supports the view that the authorization to bring an action is granted only to the "claimant party" and the counterclaimant cannot prosecute independently if the main claimant fails to file the claim within the time limit.
A…