Facts
A tenancy agreement for a hotel existed between Luzia J. as the tenant and spouses Walter and Margot H. as the landlords since October 1, 1986. The landlords terminated the agreement effective September 30, 1990. Luzia J. then filed a claim with the District Court A. to have the termination declared null and void or to obtain an extension of the contract. However, her lawyer withdrew the claim on May 3, 1990, whereupon the court dismissed the proceedings.
After the new Tenancy Law came into force on July 1, 1990, Luzia J. filed a new claim with the Conciliation Authority to challenge the termination or obtain a contract extension. However, the cantonal instances dismissed her claim, as the material res judicata of the previous dismissal order stood in the way.
Considerations
The Federal Supreme Court upheld the decisions of the lower instances. It explained that the transitional provision of Art. 5 para. 2 of the Final Provisions of the new Tenancy Law conflicts with the effects of material res judicata in cases where challenge or extension proceedings were conclusively settled before July 1, 1990. Since the facts and the claims asserted under the old and new law were identical, the previous dismissal order due to the withdrawal of the claim had the effect of material res judicata.
According to the Federal Supreme…