Facts
The Raiffeisenbank Schefflenztal GmbH in Schefflenz (Germany) pursued Ulrich Nietzke, residing in Hunzenschwil (Aargau), for a claim of CHF 10,922.25 plus 12% interest since January 20, 1970 and debt collection costs. The claim was based on a judgment issued on September 4, 1974 by the Amtsgericht Karlsruhe, which had decided on the validity of a surety obligation entered into by Ulrich Nietzke on January 16, 1970.
Ulrich Nietzke defended the debt collection proceedings by filing a timely objection. The Cantonal Court of Aargau upheld the creditor's appeal and granted the Raiffeisenbank Schefflenztal GmbH definitive enforcement of the claim amount.
Ulrich Nietzke filed a constitutional appeal against the cantonal decision with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that Ulrich Nietzke had expressly and timely contested the jurisdiction of the German court during the proceedings, which was sufficient for an appeal under Art. 2 No. 3 of the Agreement between Switzerland and Germany on the Mutual Recognition and Enforcement of Judicial Decisions.
However, the Cantonal Court also considered the plea of lack of jurisdiction unfounded if Ulrich Nietzke had raised it at the appeal instance. This is because Ulrich Nietzke had acknowledged the jurisdiction of the Amtsgericht Karlsruhe by signing the surety declaration of January 16, 1970. This constituted a choice of law that was valid as a procedural agreement, regardless of whether it was legally binding under Swiss law or not.
The Federal Supreme Court confirmed this view. It stated…