Facts
The dispute opposes Theodor Roth to the company H. Hächler AG, Hoch- und Tiefbau. In 1970 and 1971, Theodor Roth built three single-family homes in Wettingen, two as a general contractor for two different clients and one for his own account. The masonry work for these houses and their access roads was entrusted to the company H. Hächler AG. On February 17, 1972, the president of the district court of Baden authorized the provisional registration of a builder's lien on the two properties belonging to Roth's clients, as well as on a common road plot. The company H. Hächler AG brought an action against Roth on May 4, 1972, demanding payment of an amount of 178'626.85 Swiss francs, with interest. The claim was dismissed, and a new claim was filed on May 10, 1972, with a different formulation. On September 26, 1972, the lawyer for the company H. Hächler AG withdrew the initial claim. On February 16, 1973, the company H. Hächler AG brought a new action against Roth, demanding payment of an amount of 164'925.30 Swiss francs, with interest. Roth raised the res judicata exception, which was rejected by the district court and the court of appeal of the canton of Aargau.
Considerations
The Federal Court examined whether the res judicata exception was founded. The decision of the cantonal court was annulled and the case was remanded for a new decision. The Federal Court considered that the res judicata exception was founded, as the two actions concerned the same parties and the same claims for labor rent.
The Federal Court also examined whether the res judicata exception had been raised in an abusive manner. The cantonal court considered that the exception had been raised in an abusive manner, as Roth's lawyer had failed to notify the lawyer for the company H. Hächler AG that his client would raise the res judicata exception. However, the Federal…