Facts
Renato Bizzozzero, residing in Lugano, had two holiday homes built in Celerina. The execution of the subfloors for corridors, stairs and rooms in parquet and Colovynil was entrusted to the master craftsman Alfred Sigrist. Differences of opinion arose over the claim due to him. On the order of the District Office of Oberengadin on April 21, 1960, Sigrist obtained the provisional registration of a mechanic's lien (caveat) for a claim of CHF 13,525.25 up to ten days after the final judgment on the matter.
To initiate the lawsuit, the District Office set Sigrist, the applicant, a deadline until June 15, later extended to July 15, 1960, "with the effect that the caveat expires if the deadline is not met". Within this period, Sigrist initiated the conciliation proceedings. On October 6, 1960, he received the conciliation certificate and now had to "submit the conciliation certificate and a statement of claim to the President of the District Court of Maloja within the peremptory deadline of 20 days" in accordance with Art. 96 of the cantonal CPC. He did indeed post the statement of claim on the last day of this deadline. However, by mistake, the conciliation certificate had not been enclosed with it. Its subsequent dispatch, which took place two days later, was unable to validate the filing of the claim. The President of the District Court struck out the claim in accordance with Art. 97 of the CPC, and a complaint filed by the plaintiff against this was unsuccessful.
On February 17, 1961, the plaintiff initiated a second conciliation procedure and gave legal effect to the new conciliation certificate by submitting it together with the statement of claim of June 24, 1961 within the prescribed deadline. However, in a judgment of December 1/12, 1962, the District Court of Maloja declared itself incompetent, because the plaintiff had forfeited the lien claim through that erroneous first filing of the claim and the only claim still to be assessed was to be asserted in court at the place of residence of the defendant, in Lugano, and not at the place where the property was located.
On the plaintiff's appeal, the Cantonal Court Committee of Graubünden overturned this judgment on March 23, 1963 and referred the matter back to the District Court of Maloja for substantive consideration and assessment. The Cantonal Court Committee considers the mistake made by the plaintiff in the first proceedings, which led to the inadmissible rejection of that first claim, to be a correctable error, so that the plaintiff must be granted the grace period of Art. 139 CO for the new filing of the claim, which he has indeed used in a proper manner.
Considerations
The Federal Court confirms the decision of the Cantonal Court Committee. According to Art. 839 para. 2 CC, the lien of the craftsmen and contractors must be registered at the latest three months after completion of their work. The plaintiff has obtained the caveat of a provisional registration of his lien within this period. The three-month period of Art. 839 para. 2 CC is a period of forfeiture that cannot be extended.
Since the deadline for filing the claim set by the District President for the plaintiff is based on Art. 961 para. 3 CC, the concept of filing…