Facts
The company Monbaron + Moser, as the developer, constructed the houses on Chemin du Crêt in Leubringen in 1973/74 and sold them as condominiums during the construction process. In the winter of 1977/78, damage appeared in the facade plaster, which had been installed by Jürg Blunier. Despite complaints, the defects were not remedied. Finally, the condominium association waived the rectification and sued Blunier in March 1980 for the payment of CHF 102,200.--. The Court of Appeal of the Canton of Bern affirmed the party and procedural capacity of the plaintiff, which had been disputed by the defendant, and partially upheld the claim on November 3, obliging the defendant to pay CHF 40,000.-- plus interest to the plaintiff.
On the defendant's appeal, the Federal Supreme Court also affirms the party and procedural capacity of the plaintiff, otherwise upholds the appeal and dismisses the claim, setting aside the cantonal judgment.
Considerations
The Federal Supreme Court acknowledges that the procedural capacity of the condominium association is limited to joint administrative activities according to Art. 712l para. 2 of the Swiss Civil Code (ZGB). However, it extends this procedural capacity beyond this, in the interest of procedural economy and legal certainty, to warranty claims from purchase and work contracts with third parties.
The condominium association can - consequently only in this area - sue and be sued under its own name and at the place where the property is located. This administrative activity…