Facts
A. SA, a real estate company, claimed brokerage fees from B. and E., two sellers of a property, following the sale of this property to C. SA. After an unsuccessful conciliation attempt, A. SA filed a claim against B. and E. before the Civil Court of the Montagnes and Val-de-Ruz. B. contested the jurisdiction of this court at the conciliation stage.
The Civil Court declared the claim inadmissible against B. on the grounds of lack of territorial jurisdiction. The Civil Court of Appeal of the Cantonal Tribunal of Neuchâtel confirmed this judgment. A. SA then filed the same claim against B. before the Regional Court Jura bernois-Seeland, which declared the claim admissible. B. and C. SA appealed this decision.
The Supreme Court of the Canton of Bern finally annulled the decision of the Regional Court and decided that there was no reason to enter into the merits of A. SA's claim. The latter then filed a civil appeal to the Federal Tribunal.
Considerations
The Federal Tribunal dismissed the appeal. It considered that, in principle, an authorization to proceed issued by a conciliation authority incompetent ratione loci is not valid. However, the defendant who has participated in the conciliation procedure without raising an objection to jurisdiction can no longer rely on this defect subsequently.
Indeed, according to the principle of good faith in procedure, the defendant must assert his means at the time…