Facts
B. AG (Plaintiff, Respondent) operates a restaurant and bar in U. It had taken out an "X. Business Insurance SME" with A. AG (Defendant, Appellant), which also included insurance for loss of earnings and additional costs due to an epidemic up to a maximum amount of CHF 2,000,000.- with a deductible of CHF 200.-.
On March 16, 2020, the Federal Council classified the situation in Switzerland in connection with the spread of the coronavirus as an extraordinary situation and ordered the closure of restaurant and bar operations. This led to a loss of earnings for the Plaintiff. On March 18, 2020, it calculated an expected business interruption loss until April 30, 2020 of CHF 75,397.- and requested the Defendant to provide the insured benefits. However, the Defendant rejected compensation in connection with the coronavirus.
The Plaintiff then filed a partial claim with the Commercial Court of the Canton of Aargau and requested that the Defendant be ordered to pay it CHF 40,000.- for loss of earnings and additional costs due to the epidemic. The Commercial Court upheld the claim - apart from the start of the default interest - and ordered the Defendant to pay the Plaintiff CHF 40,000.- plus interest at 5% from April 24, 2020.
Considerations
The Federal Supreme Court first examines whether the General Terms and Conditions (GTC) of the insurance policy have become part of the contract. For this, the parties must have expressly or implicitly adopted the GTC and the policyholder must have been in possession of the GTC.
Even if the GTC are part of the contract, they only apply to the extent that there are no individual agreements that deviate from the GTC (priority of the individual agreement). Furthermore, the GTC clauses must not be unusual for the consenting party. The unusualness is assessed from the perspective of…