Facts
On January 13, 1965, Intravend AG sold a trench excavator to Consorzio Gianola, Vittori e De Vittori for the price of CHF 185,513. By judgment dated November 1, 1976, the Cantonal Court of Zurich upheld the buyers' counterclaim for rescission of the contract and ordered Intravend AG to repay the purchase price of CHF 110,000 paid so far, plus interest, against the return of the machine "together with all accessories, components and spare parts in the condition in which they are currently found". This judgment was confirmed by the Federal Supreme Court on October 12, 1977.
At the request of Consorzio Gianola, Vittori e De Vittori, the single judge of the District Court of Zurich on September 30, 1981, in the summary proceedings pursuant to § 222 para. 1 CPC/ZH, determined that the plaintiffs had duly offered to return the trench excavator to the defendant. He therefore ordered the defendant to collect the machine, including all accessories, components and spare parts, in Manno (TI). An appeal by the defendant against this judgment was dismissed by the Cantonal Court of Zurich on September 6, 1982.
The defendant has filed an appeal and requests that the decisions of the two lower instances be set aside and that it be determined that the plaintiffs have not fulfilled their performance according to the judgment of November 1, 1976; alternatively, the case should be remanded to the single judge for further taking of evidence and a new decision.
Considerations
The Federal Supreme Court considers the appeal admissible, as it is a civil law dispute within the meaning of Art. 46 OG. Decisions in summary proceedings pursuant to §§ 222 et seq. CPC/ZH for the enforcement of a rescission judgment are to be qualified as appealable civil law disputes.
The Federal Supreme Court sees no violation of the res judicata of the rescission judgment of November 1, 1976, as it is a matter of new facts concerning the execution of the rescission judgment, which have nothing to do with the adjudicated claim for rescission itself. There can therefore be no question of identity of claims.
The Federal Supreme Court further states…