Facts
The case concerns a dispute between the plaintiff A. and the defendant B. over a breach of contract, in which A. is claiming 30,000 Swiss Francs from B. A. filed a conciliation request with the Justice of the Peace Office, upon which B. notified that he would not participate in the conciliation hearing. Thereupon, A. requested the Justice of the Peace to be dispensed from the conciliation hearing and to directly issue him the authorization to file the claim. The Justice of the Peace granted A. the authorization to file the claim without holding the conciliation hearing.
The District Court did not enter into A.'s claim, as the authorization to file the claim was defective. The High Court confirmed this decision. Thereupon, A. filed a complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the complaint. It stated that according to Art. 199 para. 1 CPC, the parties must conduct a conciliation procedure in disputes with a value in dispute under 100,000 Swiss Francs, even if they jointly do not want to. A joint waiver of the conciliation hearing is legally excluded in this case.
If the defendant declares that he will not comply with the summons to the conciliation hearing, the conciliation authority may not dispense the plaintiff from the conciliation hearing. Despite the defendant's notification that he will not come, the plaintiff must attend the hearing, if necessary, solely to obtain the authorization to file the claim.
The Federal Supreme Court held that the different consequences…