Facts

The present case concerns a third-party notice claim that was filed in connection with a main claim. The parties are:

  • Plaintiff in the main claim: B. AG in liquidation
  • Defendant in the main claim: A. AG
  • Plaintiff in the third-party notice claim: A. AG
  • Defendants in the third-party notice claim: B. AG in liquidation and C. AG

The lower court had dismissed the main claim and struck out the third-party notice claim as moot. The defendant A. AG appealed against this cost allocation in the third-party notice proceedings.

Considerations

The Federal Supreme Court explains that the third-party notice claim is not a conditional, but an independent claim. However, the third-party notice claim proves to be unfounded if the main claim is dismissed, as the condition for the asserted recourse claim then ceases to exist.

Therefore, the lower court should have correctly dismissed the third-party notice claim, instead of striking it out as moot. In accordance with the principle of the losing party bearing the costs under Art. 106 para. 1 CPC, the full costs of the third-party notice…