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- Art. 5a FC
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- Art. 55 FC
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- Art. 75b FC
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- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
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- Art. 11 CO
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- Art. 50 CO
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- Art. 84 CO
- Art. 143 CO
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- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
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- Art. 10a PRA
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- Art. 32a PRA
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- Art. 59a PRA
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- Art. 59c PRA
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- Art. 75 PRA
- Art. 75a PRA
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- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
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- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
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- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Background
- II. Current developments
- III. Subject matter
- IV. Advantages of the partial action
- V. Individual questions
- Bibliography
I. Background
1 Even before the enactment of the Swiss Code of Civil Procedure, the right to bring a partial action in Switzerland was recognized by the Federal Supreme Court as an outgrowth of the creditor's substantive right to demand only partial payment from the debtor pursuant to Art. 69 para. 2 CO. The doctrine, on the other hand, has always regarded the right to bring a partial action as a consequence of the principle of disposition. The principle of disposition states that the court cannot award a party more or anything else than it demands and not less than is recognized by the other party (Art. 58 para. 1 CPC). The plaintiff can therefore, but does not have to, sue for all claims to which it is entitled on the basis of the facts of the case. The partial right of action was codified without discussion in Art. 86 CPC. In the dispatch on the CPC, the legislator also endorsed the doctrine that the holder of a divisible right was free to sue for only a part of it in accordance with the procedural maxim of disposition, which was no longer regulated at cantonal level. In the meantime, the Federal Supreme Court has agreed with the allocation to procedural law.
II. Current developments
2 The case law on partial actions has developed rapidly in recent years and has given shape to the effects of partial actions and their procedural classification in relation to other provisions. Older commentaries and doctrinal opinions should therefore be studied against the background of the more recent case law. The forthcoming revision of the CPC is unlikely to have any impact on case law in the area of partial actions. Art. 224 para. 1bis E-CPC merely states what already applies based on the case law of the Federal Supreme Court: in future, a counterclaim should be possible in two cases that transcend the proceedings. Firstly, if the simplified procedure is only applicable due to the value in dispute, and secondly, in the special case of a negative declaratory counterclaim. If the main action is a partial action, the litigation costs are calculated exclusively on the basis of the value in dispute of the main action, i.e. the partial action, and no longer the negative declaratory counterclaim, in accordance with Art. 94 para. 3 CPC. In future, this provision will provide the party bringing the partial action with the advantage of obtaining a certain degree of certainty regarding the expected cost consequences of their action, as the cost consequences are no longer dependent on the conduct of the defendant. The legislator is thus not only accommodating the party bringing a partial action, but also the party bringing an action for a declaratory judgment in terms of costs. The "victims" of this new provision are the cantons, whose courts will no longer be able to increase court costs in future because a declaratory counterclaim has been brought, despite additional work. The new provision also means that party compensation will remain lower than before, even in the case of a declaratory counterclaim.
III. Subject matter
A. General
3 The CPC recognizes three types of action: an action for performance, an action for a declaratory judgment and an action for a declaratory judgment. The partial action is not a separate type of action, but a variation of the action for performance, as is the case with the unquantified action for a claim (Art. 85 CPC) or the objective accumulation of actions (Art. 90 CPC). A partial action does not lead to a partial judgment (as is often the case for the question of jurisdiction, for example), but to a final judgment. For the legal effect of this final judgment, see below, V.H. It is not the action that is divided, but the claim. It is therefore a "partial claim action".
4 Art. 86 CPC does not stipulate any specific concepts, but draws the consequences from other norms. Thus, Art. 86 CPC initially implicitly confirms what already follows from substantive res judicata: An action on the unadjudicated part of a matter in dispute is not excluded because another part has already been adjudicated in a partial action. Similarly, the divisibility of the claim - the only requirement set out in Art. 86 CPC - does not follow from Art. 86 CPC, but from substantive law. It is therefore not the admissibility of a partial action that requires a statutory provision; rather, the inadmissibility of a partial action would have required an express provision.
B. Terminology
5 The subject matter of the dispute is important under procedural law. It influences, among other things, the question of whether an action is cumulative, whether an amendment to the action or the filing of a counterclaim is necessary, and whether a new action is precluded by the substantive legal force of the first decision. If several matters in dispute are asserted together, there is an objective accumulation of claims and the term partial action should not be used in my opinion. If, on the other hand, the asserted claim is based on one factual matter, a partial action exists.
6 A distinction is made between genuine and non-genuine partial actions. A genuine partial action differs only in quantitative terms from the overall claim asserted. Only part of a claim is claimed. For example, CHF 10,000 is claimed from a total claim of CHF 100,000 from a purchase price claim. Another example is the assertion of a quantitative part of a total claim arising from a personal injury. This is because several different damage items and compensation from the same accident constitute a single life event.
7 The non-genuine partial action is an individualized claim that can be separated from other claims derived from the same fact of life either in terms of time (e.g. different due dates) or on the basis of the legal grounds. However, the formulation used by the Federal Supreme Court of the individualizable claim of the total damage provides little clarity. The Federal Supreme Court assumed a non-genuine partial claim if only individual, precisely defined claims are asserted from several claims (e.g. only some but not all supplementary claims from a work contract), but these are asserted in full.
8 It is therefore possible to limit the subject matter of a dispute not only by means of a legal request (e.g. only half of CHF 100,000, which the substantive legal basis would allow (then a genuine partial action)), but also by limiting the examination to individual substantive legal bases of the claim. For example, only non-contractual claims can be asserted in the adhesion proceedings, but not contractual claims, as a result of which the latter remain without legal force. In both cases, the remaining subject matter of the dispute is outside of the facts sued for and a separate assessment remains possible at a later date. If, for example, a plaintiff has already obtained a judgment by means of a partial action, whereby the damage item "material damage to a watch" was not asserted, it can still claim this material damage at a later date. This is simply a different matter, even if, according to the terminology of the Federal Supreme Court, it concerns the same matter in dispute from the "rear-end collision". In the light of the Federal Supreme Court's case law, however, care should be taken to explain this in detail in the statement of claim so as not to run the risk of the Federal Supreme Court assuming that the matter has already been adjudicated.
9 The proximity to the objective accumulation of claims, which, however, as mentioned, comprises two separate matters in dispute, is striking. In the case of a non-genuine partial action, in my opinion, several independent individual claims are involved, i.e. different matters in dispute, and thus full actions.
10 The open wording of Art. 86 CPC makes it possible to distinguish between genuine and non-genuine partial actions. However, the tendency of the Federal Supreme Court seems to be to dispense with such terms, which are not very clear: When asserting a total of three claims regarding overtime compensation for three different periods of time, whereby only the compensation for one year was claimed, the lower court assumed different periods and thus different life circumstances and assumed a non-genuine partial action. The Federal Supreme Court resolved the case by stating that Art. 224 para. 1 CPC applies to all partial actions, whether genuine or non-genuine. Whether the compensation for the overtime allegedly worked during a certain calendar year constituted an independent subject matter of the dispute was irrelevant. The Federal Supreme Court also left open the question of whether an action for damages arising from a road traffic accident (loss of earnings) is a genuine or non-genuine partial action. Recently, the Federal Supreme Court - in contrast to the lower court, which spoke of a genuine partial claim - has used the term "part of a claim limited in amount"; this in distinction to individual damage items. The term is also no longer used in further decisions of the Federal Supreme Court.
11 The distinction between genuine and non-genuine partial claims plays no role in determining the subject matter of the dispute. In my opinion, the terms genuine and non-genuine partial action should be dispensed with. This is for two reasons: Firstly, it is irrelevant for the court hearing a partial action whether it is a genuine or non-genuine partial action. The court examines what is submitted to it. Secondly, the blocking effect of the substantive legal force is assessed on the basis of the decision issued on the partial action. The only relevant factor here is what the subject matter of the dispute was, and not whether a genuine or non-genuine partial action was to be assessed. Sometimes (also without added value) the term open or concealed partial action is also used, depending on whether the plaintiff makes it clear in the partial action or in the proceedings that not all claims arising from the facts of the case are being asserted with the legal request or not.
C. Delimitation
12 The partial action must first be distinguished from the unquantified claim pursuant to Art. 85 CPC. In this case, the plaintiff basically asserts the entire claim, but cannot quantify the amount. The provisional minimum amount in dispute does not constitute an upper limit. In contrast, with a partial action, only a specific amount is deliberately claimed. It is therefore not possible for the court to award more to the plaintiff on its own initiative than the plaintiff is claiming with its partial action (Art. 58 para. 1 CPC).
13 A partial assignment is also not to be confused with a partial action. The assignment of part of a claim that has not yet been brought before the court regularly leads to two independent claims with independent fates. They can therefore also be sued for independently.
14 The objective accumulation of claims concerns the assertion of claims based on several different facts of life. The partial action in the form of a genuine partial action comprises only one fact of life. However, there is also talk of a partial action in the form of an objective accumulation of actions. In my opinion, this should be rejected, as it is then not a partial action, but rather various matters in dispute in the form of objective accumulations of actions.
15 The partial action must also be distinguished from the right of rectification. Pursuant to Art. 46 para. 2 CO, the court may reserve the right to amend the judgment for two years from the date of the judgment in the case of damages for personal injury. This reservation is aimed at the possibility of amending a judgment. This is therefore not a (temporary) statutory case of the reservation of the right to bring a subsequent action.
D. On the (abandoned) inadmissibility of the alternative objective accumulation of claims in the context of bringing a partial action
16 In several decisions, the Federal Supreme Court has commented on the inadmissibility of the alternative objective accumulation of claims in order to finally change its practice. The decisions issued prior to the change in practice are still enlightening, as they show when the Federal Supreme Court assumes that there are facts of life (see also III. B above).
17 The Federal Supreme Court had initially considered that a partial claim directed at three annual bonuses was inadmissible. The total amount was CHF 480,000 and CHF 30,000 was claimed. The plaintiff had not specified the order in which it wanted to assert the three claims. Legal claims that are directed towards monetary compensation are not individualized on their own and can therefore, as in this case, encompass different life circumstances and therefore different matters in dispute. This does not meet the requirements of certainty, as there is an inadmissible alternative objective accumulation of claims, which is why the claim should not be upheld. In a nutshell, the Federal Supreme Court ruled that although independent damage items (e.g. damage from loss of earnings already incurred and future loss of earnings damage) could not be clearly delimited objectively in the event of a traffic accident, the relevant facts of life remained the accident with personal injury. There was therefore a single life event, although the damage items of compensation and satisfaction were claimed, and therefore no order of examination had to be specified.
18 Later, the Federal Supreme Court, amending its case law, considered that the requirement to specify the order of examination could no longer be upheld. All that was required was that the plaintiff had to assert with sufficient substantiation that there was a claim in excess of the amount claimed. In my opinion, however, this is not a question of the admissibility of the partial action. If the plaintiff does not sufficiently assert this, this does not mean that the partial action will not be accepted. The order of examination is simply left to the discretion of the court. According to the latest case law, a plaintiff no longer has to fear non-admission due to an undefined legal claim if it does not specify the order of several claims. However, this case law leads to considerable legal uncertainty. The plaintiff has only lost if none of the facts of the case provide a basis for approval. However, the consequences of res judicata can be very different depending on the order chosen by the court. In extreme cases, the parties only find out which claims have been adjudicated and which have not from the decision. The claims that have not been adjudicated may again be the subject of a lawsuit. A plaintiff is therefore still well advised to specify the order in which the claims are to be examined.
E. Admissibility
19 The law speaks of the divisibility of a claim. As mentioned, Art. 86 CPC does not contain any further requirements in addition to the divisibility requirement. It has also already been pointed out that it is not the action but the substantive claim that is divided. In the case of money, the divisibility of the claim is always given. However, a partial action is not limited to monetary claims, but is also conceivable for other claims (e.g. claims for the performance of fungible goods or special debts on material assets).
20 The parties determine what the court has to assess, insofar as they are free to dispose of the claim. If the parties cannot freely dispose of the claim, the filing of a partial action is sometimes considered inadmissible. The High Court of the Canton of Zurich considered that the plaintiff could not bring a partial action for modification of child maintenance, as child maintenance is subject to the official principle. It also considered that a partial action was also inadmissible where a quantification of the claim was left to the court in accordance with Art. 42 para. 2 CO, which is regularly the case in the context of an unquantified claim. In response to an appeal against this decision, the Federal Supreme Court considered that the ancestral maintenance law as the subject matter of the dispute also excludes a partial action under substantive law that explicitly seeks a fundamental annulment or modification of child maintenance; however, as a full action, a modification of maintenance is only permissible for a certain period of time. In my opinion, the mere fact that the right to bring a partial action arises from the principle of disposition does not mean that the bringing of a partial action is excluded per se where the official maxim applies. As long as there is a claim that is divisible under substantive law, it should be possible to bring a partial action. Anything else would have required an explicit provision in Art. 86 CPC. Thus, in my opinion, the filing of a partial action limited in amount within the scope of a damage estimate within the meaning of Art. 42 para. 2 CO is not excluded because the court has to estimate the damage. However, bringing a partial action will hardly make sense in these cases, as the minimum amount in dispute to be stated in the context of an unspecified claim minimizes the cost risk and bringing a partial action may even fall short of the amount of the court's estimate of damages, which is hardly in the interest of the plaintiff.
21 The formulation of correct legal claims is a procedural requirement, meaning that inadmissible claims cannot be accepted. If one takes the view that the partial action only applies to matters subject to the principle of disposition, the partial action would not be admitted due to an invalid legal claim. However, the situation is different in the event that an alleged partial action is brought, but the court assumes a full action. The court will not make a decision not to intervene, but will instead substantively approve or dismiss the claim.
22 The filing of several partial actions is generally permissible. However, the filing of many partial actions with low amounts in dispute can be seen as harassment and thus as an abuse of rights.
23 The partial action also offers scope for permissible tactical maneuvers: The plaintiff can, for example, first file a partial action for CHF 50,000, await a settlement hearing in court and, after a positive interim assessment by a delegation of the court, bring the remaining amount into the proceedings in the hope that the full court and the second exchange of documents will not lead to a different assessment. It can also increase the amount of the partial claim as part of an amendment to the claim in the reply without asserting the total claim. The admissibility of this procedure is based on the principle of disposition.
24 The partial action offers advantages. However, it is not without risk. A partial action for more than CHF 30,000 can lead to non-admission for lack of subject matter jurisdiction (as the simplified procedure applies up to CHF 30,000 and the Commercial Court does not deal with lawsuits in the simplified procedure).
IV. Advantages of the partial action
25 Filing a partial action makes it possible to reduce or even avoid costs, to influence the subject matter jurisdiction and the applicable procedure. The choice of the simplified procedure regularly leads to an acceleration of the proceedings. The partial action can also be advantageous if the plaintiff only has evidence for part of the claim or if there are concerns about the solvency of the defendant. If the claim is for less than CHF 10,000, the right of appeal (Art. 308 para. 2 CPC) and an appeal in civil matters to the Federal Supreme Court (Art. 74 para. 1 BGG) for less than CHF 30,000 can be excluded. In many cases, the test process should also serve to clarify the prospects of the case. In this sense, the partial action makes it possible to clarify the prospects of success with limited risk. To a certain extent, this is also comparable to applications for free legal aid, at least to the extent that free legal aid is refused in cases where there is clearly no prospect of success. In practice, settlements are often reached which, in the case of a partial action, settle the entire claim with legally binding effect. It is also conceivable that the defendant concludes a settlement for the remaining claim after a favorable decision or voluntarily pays the total claim. The suggestive effect of a decision on a partial claim (similar to interim measures) should also not be underestimated, especially as the same court often judges other lawsuits. The Federal Supreme Court refers to this as the de facto binding effect of the decision on the partial claim.
V. Individual questions
A. Reservation of right of subsequent action
26 The legal claim must be formulated in such a way that it can be directly included in the dispositive part of the decision. The dispositive of a partial claim should neither contain the phrase "additional claim reserved" nor "subject to the reservation of subsequent action". It is unnecessary to add a reservation of the right to bring a subsequent action in the legal request. Art. 86 CPC has precisely the guarantee function that the filing of a partial action does not lead to the forfeiture of the remaining claim that has not been claimed, at least from a procedural point of view. The opinion that a reservation of subsequent action should be made "as a precaution" is not convincing. It is a question of the substantive legal force of the decision on the first partial claim whether a second (partial) claim is admissible. A reservation of the right to bring a subsequent action has no significance with regard to substantive legal force. The court is not guided by what the plaintiff intended with the first partial action, but by how the plaintiff has presented its claim. Caution when drafting a partial action should therefore not be exercised by including unnecessary empty phrases in the request for relief, but rather by providing sufficiently substantiated grounds (Art. 86 CPC does not offer any reduced requirements for substantiation; anyone wishing to bring a partial action should be aware that a partial action must be litigated like a normal action and failing to substantiate it may result in the loss of the remaining claim). A legal request for the reservation of the right to bring a subsequent action should be avoided in order to prevent the claim from being dismissed for lack of interest in legal protection with the corresponding cost consequences (Art. 106 para. 1 CPC).
B. Waiver of residual claim
27 A waiver of the residual claim is possible, but cannot be accepted lightly. A waiver of a claim is a question of substantive law. The exercise of a procedural right - the filing of an action for a certain amount - cannot therefore be interpreted as a waiver of a possible claim for an excess amount. Therefore, the Federal Supreme Court's statement that a subsequent action can be waived expressly or by implied conduct and that it is then a so-called full action is unfortunate without reference to the restrictive requirements of this legal consequence. In any case, the absence of a reservation of the right to subsequent action does not constitute an implied waiver. Whether an implied waiver exists depends solely on the specific individual case and the application of the provisions of the law of obligations. The view that a further action could be interpreted as venire contra factum proprium without a reservation of right of action and would therefore be an abuse of rights within the meaning of Art. 2 CC must also be rejected due to the irrelevance of the reservation of right of action. Anyone who makes use of his procedural right does not justify any trust worthy of protection.
C. Legal effect of the decision on a partial action
28 In general, only the dispositive becomes legally binding and the judgment on a partial claim only becomes legally binding with regard to the part of the claim that has been claimed. This is undisputed if the partial claim is upheld. The res judicata effect only applies insofar as the asserted claim has been assessed. However, the scope of the res judicata effect does not result from the dispositive alone, but from the considerations of the judgment.
29 If no negative declaratory counterclaim is filed by the defendant in response to a partial action, the (partial) plaintiff may assert further claims. However, if the defendant files a negative declaratory counterclaim, this leads to the loss of further claims if the plaintiff is unable to prove further claims.
30 When dismissing a partial claim that is limited in amount, the court must examine the overall claim before it can dismiss the partial claim in whole or in part. Therefore, a renewed (partial) action is generally precluded by the res judicata effect of the first judgment. This also applies in particular in cases in which the partial claim was dismissed for lack of sufficient substantiation (i.e. if the court was unable to examine the entire claim before dismissing the partial claim due to a lack of sufficient substantiation). This is the necessary consequence of a lack of substantiation, which generally applies to lawsuits.
31 However, the dismissal of a partial action does not prevent the plaintiff from asserting other damage items in a new action, because the first judgment did not decide that the plaintiff was not entitled to any claim at all. In this case, however, the plaintiff should already clearly state in the statement of grounds which damage item is being asserted. If this is not done, there is a risk that the court will assume that the claimant has sued for part of the total damage, i.e. a cross-section of all damage items. The same applies in the case of a claim that is limited in time.
32 According to Art. 241 CPC, a settlement or withdrawal of a claim has the effect of a legally binding decision and the court writes off the proceedings. In my opinion, this legal consequence must be distinguished from the legally binding dismissal of the partial action, as there is nothing in the recitals of the dismissal decision about the successful or unsuccessful assertion of claims or the substantiation. Therefore, in this case, the general principle must apply that the legal force is only limited to the amount of the claimed claim. When settling a partial claim, it is advisable to also include the total claim in the settlement in order to create legal certainty.
D. Negative declaratory counterclaim
1. Type of proceedings and transfer
33 A negative declaratory counterclaim subject to the ordinary procedure can also be brought if it is brought in response to a partial action brought in the simplified procedure. This is an exception to Art. 224 para. 1 CPC, according to which a counterclaim can only be brought if the same type of proceedings applies. This is justified by the fact that a declaratory action merely seeks to establish the non-existence of the overall claim already filed by the plaintiff and thus differs from an ordinary counterclaim, with which an independent claim not covered by the prior action is brought. According to the Federal Supreme Court, the question of the admissibility of the negative declaratory counterclaim is not of decisive importance for the delicate delimitation of the subject matter of the dispute. On the contrary, it has already been decided that the exception to the requirement of the type of proceedings is not limited to genuine partial actions.
34 If an action for a negative declaratory judgment is brought that exceeds the court's subject-matter jurisdiction, the court refers the case to the competent court within the meaning of Art. 224 para. 2 CPC. A partial action brought in the simplified proceedings is dealt with together with the declaratory action in the ordinary proceedings. It is true that Art. 86 CPC allows the action brought to be treated differently than if the entire claim were asserted (e.g. with regard to the type of proceedings). Nevertheless, in my opinion, the plaintiff can be expected to accept this consequence, as it corresponds to the legal situation that would have applied if the entire claim had been asserted. A partial claimant would therefore be well advised to also prepare the simplified action with a level of detail that would do justice to the ordinary proceedings if it brings a partial action in simplified proceedings within the meaning of Art. 243 para. 1 CPC. Otherwise, the partial plaintiff only has the option of submitting a reply to improve its factual basis. If, on the other hand, the proceedings are social proceedings within the meaning of Art. 243 para. 2 CPC, the filing of a negative declaratory counterclaim cannot change the type of proceedings. The CPC revision does not appear to change this, as Art. 224 para. 1bis E-CPC refers to the criterion of the validity of the simplified procedure based on the amount in dispute.
2. Interest in a declaratory judgment
a. Principle
35 The Federal Supreme Court has consistently held that the defendant has a legal interest in defending against a partial action brought against it with a negative declaratory counterclaim. This is justified by the fact that the defendant's private legal sphere is impaired to the extent of the total claim, as the partial action also includes the entire claim as a necessary basis. However, the mere fact that a partial action has been brought is not sufficient to justify an interest in a declaratory judgment. The question of how far the defendant's interest in a declaratory judgment extends when it is confronted with a claim for damages for loss of earnings from a traffic accident was recently left open by the Federal Supreme Court, as this question was not submitted to it for assessment. If a party is confronted with a partial claim that is not limited in amount, the three general requirements for negative declaratory actions also apply here in my opinion. The legal situation must therefore be uncertain, it must be unreasonable to expect the legal uncertainty to continue and, finally, it must be impossible to obtain equivalent legal protection elsewhere. The specific circumstances must be used to decide whether there is an interest in a declaratory judgment. However, the vague concept of a non-genuine partial action is not decisive.
b. No interest in legal protection in response to a partial action limited in amount
36 The aforementioned case law predates the Federal Supreme Court's decision that the dismissal of a claim with a limited amount has the effect of res judicata for the entire claim if the court had to examine all claims before coming to this conclusion. However, the Federal Supreme Court had already previously held that there was no legal protection or declaratory interest in bringing a negative declaratory action if the court considered a partial claim of CHF 30,000 (total claim CHF 45,875.70) to be justified only to the extent of CHF 14,162.55. If this decision becomes legally binding, it is already clear that the complainant owes the respondent this amount based on the facts asserted in the lawsuit, and no more. It follows that an action for a negative declaratory judgment is not admissible if the court must examine the entire claim in order to assess the partial action.
3. Contingent declaratory counterclaim and suspension
37 Due to these uncertainties, the doctrine has proposed various possible solutions that should be applied if a party is confronted with a partial action with a limited amount and wishes to bring a counterclaim for a negative declaratory judgment.
38 First, the filing of a conditional declaratory counterclaim (contingent counterclaim) is proposed in the event that the (partial) action is dismissed. This is considered permissible. In contrast to cantonal codes of civil procedure, however, the CPC does not provide for the filing of a conditional counterclaim. A conditional counterclaim can only be admissible if lis pendens within the meaning of Art. 62 CPC is already assumed when the negative declaratory counterclaim is filed, as lis pendens does not tolerate any conditions. In addition, the withdrawal of the (partial) action would also mean that the counterclaim no longer applies. However, since the CPC provides that the counterclaim has its own fate independent of the partial action (see Art. 14 para. 2 CPC), it is questionable whether a conditional counterclaim should be admissible. It is undisputed that a contingent claim can be made. However, it is clear that the main claim made by the same party will be decided one way or another (and that the contingent claim is less than the main claim). Alternative claims are inadmissible. A conditional counterclaim, on the other hand, triggers an exchange of pleadings in the same way as a pending action, but if the main action is upheld, this will have been in vain. To consider a counterclaim as pending upon filing, to conduct an exchange of pleadings like a normal counterclaim in order to ultimately consider the counterclaim as non-existent, therefore seems inadmissible in my opinion. The party filing the partial action incurs costs in responding that it cannot later recover, as there is no general entitlement to reimbursement of costs without the existence of a counterclaim. It is also questionable what the dispositive of the decision should be. Non-admission would probably be the correct solution if lis pendens were assumed, but in my opinion something that does not exist cannot be settled by non-admission. A write-off for lack of purpose within the meaning of 241/242 CPC also does not seem appropriate, as the subject matter of the negative declaratory action is retroactively deemed never to have existed at all. In principle, it is difficult to understand how something can be pending if it is dependent on another action. It is also unclear what happens if the conditional declaratory counterclaim is withdrawn before the condition (dismissal of the partial action) occurs. Can a new counterclaim then no longer be brought, as the conditional declaratory counterclaim has been served on the other party and the burden of continuation has thus arisen? In view of these question marks, in my opinion the filing of a conditional declaratory counterclaim appears inadmissible.
39 In addition to filing a negative declaratory counterclaim, an application for suspension is also being discussed in order to counter the uncertainties in connection with a partial action with a limited amount. If an unconditional negative declaratory counterclaim is brought in response to a partial action, the court can suspend the former (Art. 126 para. 1 CPC). This would save costs, as the exchange of documents regarding the counterclaim would be postponed for the time being. However, the suspension is at the discretion of the court and the court is likely to be inclined to refuse such a suspension, as otherwise there is hardly any difference in time between the filing of a counterclaim for a declaratory judgment with suspension and the filing of an action for a negative declaratory judgment in a separate lawsuit after the decision on the partial action. This should at least be the case if one sees the acceleration of proceedings as the main motive for the generous admission of the negative declaratory counterclaim in the context of the partial action.
E. Lis pendens
40 It is questionable whether the filing of a partial action limited in amount precludes a further partial action. This question is probably of a theoretical nature, as this is hardly compatible with the purpose of the partial action, which is precisely aimed at a test process with low costs. In addition, it is possible to increase the amount of the already pending partial action by amending the claim, provided that the requirements for amending the claim are met. As long as the court has not yet reviewed the claim, there is, in my opinion, no bar to lis pendens and further partial actions are permissible.
F. Statute of limitations and forfeiture
41 The partial action interrupts the limitation period only for the part claimed. However, if it is a claim for damages under liability law, the limitation period under Art. 60 CO only begins to run when the entire damage is known. If it is certain that the damage will continue to develop, there is no need to assert the already known part of the damage in advance by filing a partial action in order to avoid the limitation period.
42 The filing of a partial action may constitute a sufficient act to preserve a forfeiture period.
Bibliography
Berti Stephen V., Gedanken zur Teil(anspruchs)klage nach Art. 84 E ZPO CH, SZZP 1 (2007), S. 77-86 (zit. Gedanken).
Berti Stephen V., Zur Teilklage nach Art. 86 ZPO der Schweizerischen Zivilprozessordnung (zugleich ein Beitrag zur Lehre der materiellen Rechtskraft), in: Fellmann Walter/Weber Stephan (Hrsg)., HAVE Haftpflichtprozess 2010, S. 39-52 (zit. Zur Teilklage).
Bohnet François/Droese Lorenz, Kommentierung zu Art. 86 ZPO, in: Präjudizienbuch ZPO, 2. Aufl., Bern 2023.
Bopp Lukas/Bessenich Balthasar, Kommentierung zu Art. 86 ZPO, in: Sutter-Somm Thomas/Hasenböhler Franz/Leuenberger Christoph (Hrsg.), Kommentar zur Schweizerischen Zivilprozessordnung (ZPO), 3. Aufl., Zürich 2016.
Brehm Roland, Berner Kommentar, Obligationenrecht, Allgemeine Bestimmungen, Die Entstehung durch unerlaubte Handlung, Art. 41–61 OR, 5. Aufl., Bern 2021.
Courvoisier Matthias, Kommentierung zu Art. 86 ZPO, in: Baker & McKenzie (Hrsg.), Schweizerische Zivilprozessordnung, Bern 2010.
Domej Tanja, Formalismus – haben wir davon zu viel?, CIVPRO 2022, S. 97-125.
Dorschner Sophie, Kommentierung zu Art. 86 ZPO, in: Spühler Karl/Tenchio Luca/Infanger Dominik (Hrsg.), Basler Kommentar, Schweizerische Zivilprozessordnung, 3. Aufl., Basel 2017.
Droese Lorenz, Res iudicata ius facit, Untersuchung über die objektiven und zeitlichen Grenzen von Rechtskraft im schweizerischen Zivilprozessrecht, Bern 2015 (zit. res iudicata).
Droese Lorenz, Teilklage und Nachklagevorbehalt, in: Krauskopf Frédéric/Rothenberger Adrian (Hrsg.), HAVE Haftpflichtprozess 2023, Das Rechtsbegehren, Zürich 2023, S. 58-94 (zit. Teilklage).
Emmel Frank, Echte Teilklage vor Arbeitsgericht und negative Feststellungswiderklage, BJM 2012, S. 61-83.
Füllemann Daniel, Kommentierung zu Art. 86 ZPO, in: Brunner Alexander/Gasser Dominik/Schwander Ivo (Hrsg.), ZPO, Schweizerische Zivilprozessordnung, Kommentar, 2. Aufl., Zürich et al., 2016.
Frank Richard/Messmer Georg/Sträuli Hans, ZPO, Kommentar zur zürcherischen Zivilprozessordnung, 3. Aufl., Zürich 2000.
Gasser Dominik/Rickli Brigitte, Kommentierung zu Art. 86 ZPO, in: Schweizerische Zivilprozessordnung, Kurzkommentar, 2. Aufl., Zürich et al. 2014.
Haas Ulrich/Schlumpf Michael, Kommentierung zu Art. 14 ZPO, in: Oberhammer Paul/Domej Tanja/Haas Ulrich (Hrsg.), Kurzkommentar, Schweizerische Zivilprozessordnung, 3. Aufl., Basel 2021.
Huber-Lehmann Melanie/Conrad Zina, Streitgegenstand und gehäufte Teilklage, ZZZ 43 (2017), S. 254-263.
Hunziker-Blum Felix, Bei Teilklage bloss Teilverjährung?, AJP 2019, S. 287-293.
Landbrecht Johannes, Effiziente Streitbehandlung nach ZPO, ZZZ 56 (2021), S. 715-726.
Loacker Leander D., Kommentierung zu Art. 115 OR, in: Widmer Lüchinger Corinne/Oser David (Hrsg.), Basler Kommentar, Obligationenrecht I, Art. 1-529, 7. Aufl., Basel 2020.
Markus Alexander R., Kommentierung zu Art. 86 ZPO, in: Hausheer Heinz/ Walter Hans Peter (Hrsg.), Berner Kommentar, Schweizerische Zivilprozessordnung, Band I: Art. 1-149, Bern 2012.
Oberhammer Paul/Weber Philipp, Kommentierung zu Art. 86 ZPO, in: Oberhammer Paul/Domej Tanja/Haas Ulrich (Hrsg.), Kurzkommentar, Schweizerische Zivilprozessordnung, 3. Aufl., Basel 2021.
Ruggle Peter, Kommentierung zu Art. 14 ZPO, in: Spühler Karl/Tenchio Luca/Infanger Dominik (Hrsg.), Basler Kommentar, Schweizerische Zivilprozessordnung, 3. Aufl., Basel 2017.
Rusch Lukas/Lindholm Michelle/Chevalley Cyrill A. H., Die Teilklage in der bundesgerichtlichen Rechtsprechung, Eine Bestandesaufnahme, ZZZ 56 (2021), S. 727-736.
Spühler Karl, ZPO-Revision Halbzeit, SJZ 117 (2021), S. 942-945.
Sutter-Somm Thomas/Seiler Benedikt, Kommentierung zu Art. 86 ZPO, in: Sutter-Somm Thomas/Seiler Benedikt (Hrsg.), Handkommentar zur Schweizerischen Zivilprozessordnung, Art. 1-408, Zürich 2021.
Willisegger Daniel, Kommentierung zu Art. 221 ZPO, in: Spühler Karl/Tenchio Luca/Infanger Dominik (Hrsg.), Basler Kommentar, Schweizerische Zivilprozessordnung, 3. Aufl., Basel 2017.