Facts
In this case, it was about an action for denial of jurisdiction that Sentramat AG filed against Pan Impex Consult AG at the District Court of Zurich. The single judge in the summary proceedings of the District of Zurich had previously granted Pan Impex Consult AG provisional enforcement relief.
Sentramat AG filed the action for denial of jurisdiction on April 30, 1982 with the District Court of Zurich, although the Commercial Court of the Canton of Zurich, which was competent to assess the claim, should have been called upon. The District Court therefore did not enter into the claim due to lack of jurisdiction and transferred the files to the Commercial Court.
The Commercial Court determined in a preliminary decision that the deadline for filing the action for denial of jurisdiction had been met, as the debtor in enforcement proceedings should be granted an additional time limit of ten days from service of the District Court's decision not to enter into the claim, by analogy with Art. 139 CO. The defendant appealed against this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court confirmed the view of the Commercial Court. It stated that the analogous application of Art. 139 CO to time limits for forfeiture in enforcement proceedings, such as the ten-day deadline for filing the action for denial of jurisdiction under Art. 83 para. 2 DEBA, was indeed justified. Otherwise, the debtor in enforcement proceedings would suffer an unreasonable hardship if only the action for reimbursement were available to him.
The…