Facts
The case concerns a dispute between A. (the appellant) and B. (the respondent) over compensation due to an unjustified summary dismissal from the employment relationship. A. raised a plea of set-off in the statement of defense, as he had previously filed a private criminal complaint against B. The lower court did not consider the plea of set-off, as A.'s claim was already pending in the criminal proceedings.
A. argued that the lower court had misunderstood the principle of set-off and violated Art. 120 of the Swiss Code of Obligations. The lower court should have considered the plea of set-off, as the pendency of the claim does not prevent the plea of set-off in a subsequent proceeding.
Considerations
The Federal Supreme Court upheld the appeal. It stated that the plea of set-off raised in a proceeding is not covered by the pendency under Art. 62 of the Swiss Civil Procedure Code. Accordingly, the claim that was set off by way of a plea in a first proceeding can be set off again by way of a plea in another proceeding.
While, for reasons of procedural economy and to avoid contradictory judgments, the coordination of the proceedings may be considered, such as a transfer of the proceedings, a consolidation of the proceedings, or a stay of the proceedings. However, the…