Facts
Hans Roth, an engineer and member of the Swiss Association of Engineers and Architects (SIA), lives in Münchenstein (BL) and operates a specialized waterproofing company in Basel. Josef Koller, residing in St. Gallen, commissioned Roth in 1955 to install insulation for his single-family house in St. Gallen. When moisture damage later occurred, Koller applied to the District Court of St. Gallen for a precautionary expert opinion, to which Roth consented. The expert recommended renewing the insulation, whereupon Koller sued Roth for damages.
Roth filed a constitutional appeal against the service of the claim by the District Court of St. Gallen, as he did not recognize the jurisdiction at the place of construction (St. Gallen) and only wanted to be sued before the judge at his place of residence (Münchenstein).
Considerations
The Federal Court upheld the appeal. It stated that neither the contract for work between the parties nor the statutes and standards of the SIA contained a valid waiver by Roth of the jurisdiction of his place of residence pursuant to Art. 59 of the Federal Constitution. Such a waiver must be expressed clearly and unambiguously, which was not the case here.
Nor did Roth's unconditional participation in the precautionary evidence-gathering procedure before the District Court of St. Gallen constitute a…