Legal Nature of the Time Limit for Appealing to the Judge after Failed Conciliation Attempt by the Conciliation Authority

Facts

By contract dated November 13, 1992, C. AG rented various buildings to D. GmbH, which then sublet them to F. GmbH. By letter dated November 12, 1993, the now bankrupt C. AG and A. as assignee creditor, based on Art. 21 CO, declared withdrawal from the lease agreement with D. GmbH. On the same day, they filed a request for a conciliation procedure. The conciliation office in Appenzell established the lack of agreement between the parties on December 15, 1993.

The lawsuit subsequently filed by the bankrupt C. AG and A. with the District Court of Appenzell was withdrawn on August 16, 1994 due to non-compliance with the time limit for filing the lawsuit in accordance with Art. 274f para. 1 CO, subject to its resubmission. On the same day, the bankrupt C. AG and A. filed a new request for a conciliation procedure with the conciliation office. However, an agreement between the parties was not reached.

By submission dated October 17, 1994, the bankrupt C. AG and A. filed a request with the District Court of Appenzell, among other things, for a declaration of the legal ineffectiveness of the lease agreement due to withdrawal. The District Court - after correcting the party designation and now designating A. as the sole plaintiff - did not enter into the lawsuit in its judgment of October 25, 1996. An appeal filed against this was dismissed by the Cantonal Court of Appenzell I.Rh. in its judgment of July 1, 1997, insofar as it entered into it.

The Federal Supreme Court upholds the plaintiff's appeal against this, insofar as it enters into it, and remands the dispute for a new decision to the lower court.

Considerations

In the contested judgment, the lower court considered that the belated appeal to the judge after an unsuccessful conciliation attempt would lead to the definitive loss of the right, as the time limit for appealing to the judge pursuant to Art. 274f para. 1 sentence 2 CO is to be qualified as a time limit for forfeiture.

The Federal Supreme Court does not agree with this view. The substantive tenancy law does not stipulate any special time limits for forfeiture or a decision-making power of the conciliation authority with a statutory order of res judicata effect in the event of failure to appeal to the judge. The task of the…