Facts
On April 4, 2012, A. AG requested the Single Judge at the District Court of Maloja to allow it to judicially deposit the amount of CHF 282,558.15, as disputes had arisen between X. AG (appellant) and Y. GmbH (respondent) regarding the allocation of payments within a joint venture. The Single Judge granted the request and designated the cash office of the District Court as the deposit office.
In December 2015, the President of the District Court asked the parties to inform him where the deposited work fee sum should be forwarded. Thereupon, X. AG requested that CHF 103,854.- plus default interest be paid out to it from the deposited amount, alternatively that Y. GmbH be set a deadline to file a lawsuit against it, with the threat that if the lawsuit was not filed in time, this amount would be paid out to X. AG.
The Single Judge at the District Court dismissed the motions of X. AG and decided that the deposited amount would remain with the District Court for the time being. The Cantonal Court of Graubünden confirmed this decision.
Considerations
The Federal Supreme Court states that according to Art. 168 para. 1 CO, the debtor is entitled to deposit if the performance of the owed service cannot be made to the creditor or a representative due to an unintentional uncertainty about the person of the creditor. However, the discharging effect of the deposit only occurs if its prerequisites according…