No easy way out

Case No. O2017_025 ¦ Order of 15 March 2018 ¦ ‘Eintritt der Streitberufenen’


Art. 79(1) lit. b CPC

The notified party conducting the proceedings in place of the notifying party acts as representative of the notifying party.

This order clarifies some important aspects of third party notice and third party action. The general principles are set out in Art. 78 CPC: A party may notify a third party of the dispute if, in the event of being unsuccessful, he or she might take recourse against or be subject to recourse by a third party. The notified third party may also give notice of the dispute.

In practical terms, the notified third party may, according to Art. 79(2) CPC, either

  1. intervene in favour of the notifying principal party, without further conditions; or
  2. proceed in place of the notifying principal party, with the consent of the latter.

Now, what is the standing of the notified party in case of lit. b, above?

The FPC follows the practice of the High Court of Zurich (Obergericht; PP140001-O/U) and the Commercial Court of Bern (Handelsgericht; HG 15 12) in that there is no room for an arbitrary change of parties (gewillkürter Parteiwechsel) — even though the mere wording of Art. 79(2) CPC might suggest it. The order holds that this would be too much of an intervention into the procedural rights of the counterparty, and there is no indication whatsoever that the legislator indeed had intended it to be this way.

Game of Old Maid

Thus, the approach now also taken by the FPC effectively (only) relieves the notifying party of the burden of litigation, but clarifies that the legal effects of the judgment continue to apply to him. The notified party is therefore involved as such in the proceedings without the defendants 1 and 2 being released from the proceedings. The notified party only acts as the representative of defendants 1 and 2.

Accordingly, as is customary in the case of arbitrary representation, judicial correspondence will only be served to the notified party. Defendants 1 and 2 must have the actions and declarations of the notified party counted as their own.

In sum, Art. 79(2) CPC is anything but a comfortable ejection seat to easily get out of the danger zone.

Reported by Martin WILMING


Case No. O2017_025 ¦ Order of 15 March 2018 ¦ ‘Eintritt der Streitberufenen’



B., C.
both represented by C.


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