Facts
The Baugenossenschaft B. is the owner of a right of superficies for the construction of multi-family houses. It entrusted the scaffolding assembly work to K. AG for a lump sum of 50'300 CHF. The scaffolding assembly began on 4 February 2008 and was dismantled from 9 July 2008. K. AG requested the provisional registration of a right of lien of artisans and entrepreneurs to secure its right to payment, which was registered on 14 April 2008. K. AG then brought an action for the final registration of the right of lien, which was rejected by the Commercial Court of the Canton of Berne.
K. AG appealed to the Federal Court, requesting the final registration of the right of lien. Baugenossenschaft B. concluded that the appeal should be dismissed. The Federal Court dismissed the appeal.
Considerations
The Federal Court examined whether the assembly of scaffolding could be considered as work for which a legal mortgage of artisans and entrepreneurs could be required. It recalled its previous case law according to which the assembly of scaffolding that has not been designed for a specific construction and can be reused on another site does not constitute work for which a legal mortgage of artisans and entrepreneurs can be required.
The Federal Court examined K. AG's arguments, which requested a change in this case law. It considered that K. AG's arguments did not justify a change in the case law, as they did not present serious objective reasons for modifying the previous case law.
The Federal Court also examined the question of whether the…