In its recently published judgement 5A_691/2023 of 13 August 2024, the Swiss Federal Supreme Court clarified how time limits set out in months – the most notable case of application being the validity of the authorization to sue (Klagebewilligung), which entitles the plaintiff to file the action in court within three months of its notification – are to be calculated according to the CPC. In summary, the Court held the following:
- The provision of the CPC dealing with the commencement of time limits set out in days (Art. 141 para. 1 CPC) does not apply to time limits set out in months in the CPC.
- This reading of the CPC is in line with the European Convention on the Calculation of Time-Limits in civil, commercial and administrative matters. While the Convention itself does not expressly state when time limits begin to run, it follows from an interpretation in accordance with its spirit and purpose that the date of the event triggering the time limit coincides with the date on which the time limit begins to run.
- In the case at hand, the Swiss Federal Supreme Court held that the three-month time limit to bring an action began to run from the date the authorization to sue (Klagebewilligung) was served and that the plaintiff had submitted its claim one day too late.
- Taking into account the principle of good faith, the plaintiff's complaint was nevertheless upheld, with reference being made to the fact that the question of the correct calculation of time limits set out in months has been controversial to date.
Why is this decision relevant?
- In future, a plaintiff will no longer be able to rely on the lenience of the court as the controversial issue has now been clarified.
- In particular, the timely filing of an action in court for interrupting a lapsing period (Verwirkungsfrist) is essential, most notably when challenging a decision of a general meeting of shareholders or when challenging a last will (Testatmentsanfechtung).
More details: 5A_691/2023 13.08.2024 - Schweizerisches Bundesgericht (bger.ch)
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