Facts
The landlord (appellant) and the tenant (respondent) have been in dispute for years over the termination of the lease of retail space at [X.] strasse 75/77/79 in Zurich as of 31 January 2014 and over the extension of the lease. In this context, they conducted several court proceedings, including an extension procedure (MB140015) before the Zurich Rent Court, in which the tenant sought the extension of the lease. In this procedure, the landlord filed a statement of defence on 1 September 2014 and, among other things, applied for an adjustment of the rent for the properties from 1 February 2014 until the complete return of the leased objects to CHF 22,130,070 per year. The landlord later withdrew this application after the burden of continuation took effect.
On 15 September 2021, the landlord filed a claim with the Commercial Court of the Canton of Zurich against the tenant for payment of CHF 44,805,529 plus interest. It sought the difference between the market-based remuneration for the sales area from 1 February 2014 and the remuneration paid to date. The tenant applied for the claim to be dismissed on the grounds that the Commercial Court lacked subject-matter jurisdiction and that the matter had already been adjudicated. On 22 March 2022, the Commercial Court dismissed the claim on the grounds that the negative legal force of the extension procedure MB140015 applied. The landlord appealed against this decision to the Federal Supreme Court in civil matters.
Considerations
The Federal Supreme Court first examines the admissibility of the appeal and finds that the contested decision of the Commercial Court constitutes a final decision within the meaning of Art. 90 FSCA, against which an appeal in civil matters is admissible. It then addresses the landlord’s complaint that the Commercial Court wrongly failed to examine its subject-matter jurisdiction and instead gave precedence to the defence of res judicata. The Federal Supreme Court confirms that the examination of procedural prerequisites, in particular subject-matter jurisdiction, must take place before the assessment of substantive legal force. A court may not rule on a matter if a procedural prerequisite is lacking, and the examination of these prerequisites must be carried out ex officio (Art. 60 CPC).
With regard to substantive legal force (Art. 59 para. 2 lit. e CPC), the Federal Supreme Court states that this only leads to the inadmissibility of a claim if the subject matter of the dispute is identical. The identity of the subject matter is determined by the claims and the underlying factual circumstances. In the present case, although the landlord requested a rent adjustment in the extension procedure MB140015, it did not seek payment of a specific amount for the use of the leased objects that had already occurred. The current claim for payment of CHF 44,805,529 is based on new facts, namely the actual use of the leased objects until their return in February 2020, and is therefore not covered by the legal force of the first proceedings. The lower court has drawn the circle of claims covered by the negative legal force too widely.
The Federal Supreme Court further emphasises that the question of whether the withdrawal…