Facts
For the purpose of planning, execution, and financing a construction project in Ebikon, F., A., Be., and Bi. had founded the simple partnership Consortium H. in 1972. The architectural mandate, including construction management, had been jointly awarded to the two partners and architects Be. and Bi. by the Consortium.
As an assignee creditor of the now bankrupt H. AG, Christoph v. B. sued the partner A. at the Cantonal Court of Nidwalden for payment of an outstanding contractor's fee claim of CHF 286,009.15 according to a construction invoice signed by Bi. The Cantonal Court partially upheld the claim, whereupon the defendant filed an appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the architect requires an express authorization for legal transactions made on behalf of the building owner that significantly financially obligate the building owner. This also applies if the architect can derive his power of attorney solely from Art. 396 para. 2 of the Swiss Code of Obligations (OR).
In the present case, Bi. as the architect of the construction consortium had signed the construction invoice without there being an express authorization of the consortium for the acknowledgment of the contractor's fee. Neither a special power of attorney, a disclosed power of attorney, nor a fact establishing trust that could have justified Bi.'s…