Facts
The merchant [R.], residing in Bern, purchased 15 g of Vitamin B 12 from the trading company Joba N.V. based in Amsterdam in December 1955. In February 1956, he filed a complaint about defects, as the delivered product was not Vitamin B 12 according to an expert opinion. In March 1956, [R.] ordered 300 kg of Vitamin C from Joba and simultaneously obtained an attachment on the delivered goods and the paid price in order to assert an alleged claim from the rescission of the first purchase contract.
[R.] filed a lawsuit with the Commercial Court of Bern to have the goods released and to enforce the claim against Joba. However, the Commercial Court dismissed the lawsuit without a substantive examination, as [R.] had fraudulently brought about the jurisdiction of the place of attachment by only making the second purchase in order to obtain an object of attachment in Switzerland.
Considerations
The Federal Supreme Court states that Art. 2 of the Swiss Civil Code represents a general principle of law that applies not only in the field of civil law, but also in cantonal procedural law. Accordingly, a court can prevent the abuse of rights, such as the…