Facts
In May 1989, U. [Z.] rented an apartment from M. [M.] repeatedly drew [Z.] and his wife's attention to rent arrears and demanded payment in writing. On March 8, 1991, [M.] terminated the lease effective the end of June 1991.
The spouses [Z.] demanded a two-year extension of the lease, which was denied by the Conciliation Authority, the President of the Court, and the Appeals Commission of the Thurgau High Court. The plaintiffs successfully appealed to the Federal Supreme Court against this.
Considerations
Pursuant to Art. 272a para. 1 lit. a CO, the extension is excluded if the landlord has terminated the contract due to the tenant's payment arrears (Art. 257d CO). Art. 257d CO provides that the landlord may terminate the lease with a notice period of at least 30 days to the end of the month if the tenant is in arrears with the payment of rent or ancillary costs, after having unsuccessfully requested the tenant to pay the due rents or ancillary costs within a period of at least 30 days.
The defendant did not comply with these formalities, as neither his letter of January 13, 1991, nor that of February 20, 1991, contained a payment deadline of at least 30 days and the legally required threat. Nevertheless, the lower court considered the exclusion of the extension to be given, as in its…