Facts
The plaintiff Felix Kind had filed a claim for damages against Max Neuhäusler in the amount of 45,000 Swiss francs plus interest. Neuhäusler had terminated the contract between the parties regarding the installation of entertainment equipment in his restaurant prematurely. The District Court of Rorschach and the Cantonal Court of St. Gallen had dismissed the claim.
Kind then filed an appeal with the Federal Supreme Court. He requested that the judgment be overturned and the claim be upheld, or that the case be remanded to the Cantonal Court for a new assessment.
Considerations
The Federal Supreme Court granted the appeal. It first clarified that the creditor (here the plaintiff Kind) is allowed to set the debtor (here the defendant Neuhäusler) a grace period for performance with the reminder. The lower court had wrongly denied this.
The Federal Supreme Court further stated that the setting of a grace period in accordance with Art. 107 para. 1 CO is a prerequisite for the creditor to be able to choose between the options listed in Art. 107 para. 2 CO after the fruitless expiration of the period. However, the creditor can also insist on the performance of the contract after the expiration of the grace period and set the debtor a new grace period.
In the present case, the plaintiff Kind had set the defendant Neuhäusler a grace period of two days in a letter dated January 14, 1975 to put the equipment back into operation. The Federal…