Facts
The present case concerns a dispute arising from the rental of residential and commercial premises. Prior to the entry into force of the Swiss Civil Procedure Code (CPC) on January 1, 2011, the conciliation proceedings were pending. The conciliation authority decided on February 15, 2011 on the validity of a termination and the extension of the tenancy agreement.
The appellant argued that after the entry into force of the CPC, the deadline for appealing to the court pursuant to Art. 145 para. 1 lit. a CPC had been suspended and thus complied with. However, the Higher Court assumed that the appeal to the court was governed by the old law, as the conciliation authority had not concluded a procedure within the meaning of Art. 404 para. 1 CPC.
Considerations
The Federal Supreme Court confirmed the view of the Higher Court. It stated that the conciliation procedure for rental matters provided for by federal law had merely resulted in a prima facie preliminary decision, which did not conclude an "instance" within the meaning of Art. 404 para. 1 CPC. Accordingly, the appeal to the court was governed by the old law, specifically by the former Art. 274f para. 1 CO.
The Federal Supreme Court justified this by stating that the legislator did not intend to transform the conciliation authorities into courts of first instance by…