Facts

Parties and instances: The appellant is a plastering and painting company ([A. AG] ), represented by a lawyer. The respondent is the landowner ([B. AG] ), represented by a lawyer. The prior instances were the single judge at the Cantonal Court of Zug and the Higher Court of the Canton of Zug (II. Civil Division). The subject matter is proceedings for provisional measures concerning the provisional registration of a builder's lien.

Facts: The respondent is the sole owner of a property in Zug, a part of whose building was leased to a tenant who has since gone bankrupt. The appellant carried out plastering and painting work on the building.

Procedural history:

  • 12 February 2019: The appellant requested from the single judge the provisional registration of a builder's lien of CHF 125'280.20 plus 5% interest since 29 January 2019, super-provisionally.
  • 13 February 2019: The Cantonal Court granted the super-provisional request and ordered the annotation; at the same time, the opposing party was given a deadline to respond.
  • 8 April 2019: The respondent requested dismissal of the application and deletion of the annotation.
  • 23 April 2019: The appellant filed work reports and photographs to prove compliance with the four-month registration deadline. The respondent objected that these were inadmissible novae (6 May 2019); the appellant disputed this (20 May 2019).
  • 14 June 2019: The single judge dismissed the application and ordered the deletion of the annotation.
  • 28 August 2019: The Higher Court dismissed the appeal and confirmed the first-instance decision.

Requests before the Federal Supreme Court: The appellant requested the annulment of the Higher Court's decision and the provisional registration of the lien; in the alternative, remittal to the Cantonal Court. The Federal Supreme Court obtained the cantonal files but did not order a second exchange of written submissions.

Legal question: Whether the appellant made it credible that the four-month deadline under Art. 839 para. 2 CC was complied with, and whether the lower courts rightly disregarded the evidence (novae) submitted with the statements, in particular in light of the right to be heard and the right of reply.

Considerations

Admissibility and scope of review: The decision concerns the provisional registration of a builder's lien (Art. 961 para. 1 no. 1 CC) and is a final decision in a civil matter of a pecuniary nature. The amount in dispute exceeds CHF 30'000.-- (Art. 74 para. 1 let. b FSCA). Since such decisions are considered provisional measures within the meaning of Art. 98 FSCA, only the violation of constitutional rights may be complained of. The strict principle of complaint applies (Art. 106 para. 2 FSCA); purely appellate criticism is inadmissible.

Deadline and state of evidence: Under Art. 839 para. 2 CC, registration must take place no later than four months after completion of the work. The Higher Court held that in summary proceedings the application must contain all available means of attack and defence. Surprising objections by the opposing party do justify an immediate submission of novae (Art. 229 para. 1 let. b CPC), but the appellant could have submitted the work reports and photographs with the application, since it had to reckon with the deadline being disputed. The opposing party's photographs also suggested that the essential painting work had been completed at the end of September 2018; a contract or precise information was lacking. Making the deadline credible therefore failed. Neither the judge's duty to ask questions nor the applicant's legal inexperience changed this, as that duty does not serve to remedy procedural negligence.

Complaint of violation of the right to be heard: The appellant argued that its right to be heard (Art. 29 para. 2 Cst., Art. 6 no. 1 ECHR) was violated because its statements and exhibits were not considered. The Federal Supreme Court holds that the right…