Facts
The case concerns a dispute between company A. SA and company B. SA regarding the payment of a real estate brokerage commission. In 2009, B. SA and C. had concluded a brokerage contract for the sale of two properties in Lugano. In 2010, B. SA had granted a right of purchase on the two properties to E. A. SA, to whom C. had assigned his contractual claims, sued B. SA, claiming payment of a brokerage commission. The case was initially partially upheld by the Pretore of Lugano, but subsequently fully dismissed by the Court of Appeal of the Canton of Ticino. A. SA then appealed to the Federal Tribunal.
Considerations
The Federal Tribunal upheld the appeal, annulling the judgment of the Court of Appeal and referring the case back to the latter for a new decision. The Federal Tribunal found that the Court of Appeal had based its judgment on facts not alleged by the parties, in violation of the principles of the maxim of party disposition enshrined in Articles 55(1) and 221(1)(d) of the Swiss Civil Procedure Code (CPC).
In particular, the Court of Appeal had found that the brokerage contract provided for the payment of a commission by both the seller (B. SA) and the buyer, thus constituting a "dual brokerage" situation and the consequent nullity of both contracts. However, B. SA had never raised this exception of dual brokerage, merely contesting the validity of the contract with C. and his actual role as a broker.
According to the Federal Tribunal, in a process governed by the principle of party disposition, the judge cannot take into account facts not alleged by the parties,…