Facts
The case concerns the question of whether a termination of the rental contract, which the landlord issued before the expiry of the statutory payment deadline of 30 days, is effective.
The tenant, Andrea G., was in arrears with the rent payment for November 1991. The landlord, Rudolf K., requested him on November 22, 1991 to pay the rent within 30 days, otherwise he would terminate the tenancy. The termination then took place on December 27, 1991, i.e. still during the ongoing payment deadline.
The lower courts had decided differently: The District Court dismissed the eviction claim, as the termination had occurred before the expiry of the payment deadline. However, the High Court overturned this decision and ordered the tenant to vacate the apartment, as the termination was effective despite the ongoing payment deadline.
Considerations
The Federal Court decided that a termination issued before the expiry of the 30-day payment deadline pursuant to Art. 257d CO is not null and void, but merely contestable pursuant to Art. 273 para. 1 CO.
The wording of Art. 257d CO provides for a two-stage procedure by the landlord: First, he must set the tenant a payment deadline and threaten to terminate the contract if payment is not made. Only after the expiry of this deadline may the landlord then terminate the…