Facts

The Modernbau Klier and Rabe KG, a German company, sold a building plot in St. Augustin (Germany) to the Centra-Bau GmbH in 1972. The municipality of St. Augustin transferred the development work to a joint venture, which also included the Modernbau Klier and Rabe KG. The Centra-Bau GmbH undertook to pay the development costs of DM 755,000 in six installments. The Hafinag AG assumed liability as a guarantor for these costs.

Although the municipality of St. Augustin confirmed the completion of the development facilities, four installments were not paid at all, one was only partially paid, and the last installment was not paid. In May 1975, the Modernbau Klier and Rabe KG sued the Hafinag AG as the guarantor for payment of the outstanding development costs of CHF 19,081.60 and CHF 112,560, as well as 10% default interest.

Considerations

The Federal Court dismissed the appeal of the defendant (Hafinag AG), insofar as it was entered.

Regarding the plea of lis pendens, the Federal Court made the following findings:

  • The plea of lis pendens generally belongs to cantonal procedural law, whereby federal law determines whether the cantonal courts may affirm the identity of the claims and dismiss the second lawsuit.
  • Since the previous lawsuit was initiated in Germany, the plea of lis pendens must be examined according to federal law, as the German-Swiss…