Facts
The case concerns a declaratory action that was initially filed with an incompetent court and then resubmitted to the competent instance. The Federal Supreme Court had to decide whether the pendency could be backdated to the time of the first filing. The appellant had initially filed her claim with the Tribunal civil de l'arrondissement de la Broye, which declared itself incompetent. She then resubmitted the claim to the competent lower court, but in an amended form. The lower court rejected the retroactive pendency, as the newly submitted claim was not identical to the original filing. The Federal Supreme Court confirmed the decision of the lower court. It stated that according to Art. 63 para. 1 CPC, a retroactive pendency requires that the plaintiff resubmits the same legal document that he originally filed with an incompetent court, in the original form and within the deadline, to the competent authority. Mere identity of the subject matter is not sufficient. Since the appellant had amended her claim, a retroactive pendency could not be granted, and the claim was considered to have been filed too late.Considerations
The Federal Supreme Court stated that the wording of Art. 63 para. 1 CPC does not expressly require the resubmission of the identical filing. However, the French and Italian versions of the law point in this direction. The German wording, which speaks of the "resubmission of a filing", also allows this conclusion to be drawn.
The purpose of the norm is to avoid the loss of the plaintiff's rights if an incorrect initiation of the claim has occurred. To also give the plaintiff the opportunity to modify his filing would go beyond the purpose of Art. 63 CPC. Furthermore, this would lead to an advantage for…