Facts
On 7 February 1964, Margaritha v. Heydebrand-Wüthrich purchased a property in Bern. For the amount of CHF 43,317.-- by which the purchase price exceeded the assumed mortgages, a mortgage bond in the 10th rank was created in favor of the seller. This mortgage bond was fully paid off by May 1968. On 22 May 1968, the mortgage bond was reissued in accordance with Art. 64 para. 3 GBV, with Margaritha v. Heydebrand being named as the debtor, and the old title being invalidated.
On 21 June 1968, the marriage of v. Heydebrand-Wüthrich was divorced. On 4 September 1968, the divorced spouses concluded a settlement, which stipulated, among other things, that the wife had to reimburse the husband for the amount by which the mortgage burden had decreased since 1 January 1964.
In May 1970, the husband Godhard v. Heydebrand pursued his divorced wife, Mrs. Longoni, based on the aforementioned mortgage bond for CHF 43,317.- plus interest, for the realization of the mortgaged property. Mrs. Longoni then filed a claim for the revocation of this claim.
Considerations
The Federal Court states that a decision that dismisses a claim due to lis pendens and thus concludes the proceedings is to be considered a final decision within the meaning of Art. 48 OG. The previous case law, according to which such a decision is not a final decision, cannot be upheld.
The question of the identity of the claims that are the subject of the two proceedings is assessed according to federal law in the case of federal law claims. In the present case, the husband Godhard v. Heydebrand asserts his claim in the attachment claim proceedings on the basis of the matrimonial property settlement of 4 September 1968, while he bases it in the revocation proceedings on the mortgage bond. These are therefore competing claims that differ significantly in terms of the grounds for their creation, so that there can be no question of identity…