Facts
B. AG (Defendant, Respondent) realized a construction project on the neighboring property of A. (Plaintiff, Appellant). The Plaintiff claimed that the construction work had caused cracks on his property, and that the Defendant had assured him during joint inspections of the properties that it would repair the cracks caused by the construction, but had not carried out the promised repair work.
The Plaintiff filed a lawsuit and requested in ordinary proceedings that he be judicially authorized to have the damages established in a separate precautionary taking of evidence procedure repaired at the Defendant's expense. Furthermore, the Defendant should be ordered to pay him the costs incurred for the precautionary taking of evidence as well as damages.
Both the Regional Court of Berner Jura-Seeland and the High Court of the Canton of Bern did not enter into the claim, as the asserted claim for substitute performance under Art. 98 para. 1 CO had to be assessed in summary proceedings and no (to be dealt with in ordinary proceedings) action for performance to remedy the (alleged) damages with a simultaneous application for an enforcement measure (the substitute performance) had been filed.
Considerations
The Federal Supreme Court dismisses the appeal against the decision of the High Court.
According to the "enforcement theory", Art. 98 para. 1 CO is addressed only to the enforcement judge and states that the creditor of an obligation to do has a claim under federal law that a judgment for performance of an act be enforced by means of substitute performance. The authorization for substitute performance therefore requires a final and binding judgment for performance against the debtor.
According to the "fulfillment theory", the substitute performance is a component of the claim for performance, because the authorization for substitute performance is also about the realization of the owed performance act. The creditor who chooses the route of Art. 98 para. 1 CO does not have to first and separately obtain a judgment for performance against the debtor, but can rather directly apply for the authorization, whereby the obligation of the debtor is then…