Facts
X. Treuhand AG and Y. concluded a "Consulting Contract" on August 20, 1984, in which Y. undertook to prepare annual accounts, business analyses, and the development and implementation of new business models. On November 9, 1984, X. Treuhand AG terminated the contract without notice, which Y. rejected, as in his opinion, termination would only have been possible at the end of March 1985. After the termination notice, Y.'s services were no longer utilized.
Y. filed a claim for payment of CHF 39,808 plus interest. The District Court of Lucerne-Land dismissed the claim, but the appeal of the plaintiff was partially upheld by the High Court of the Canton of Lucerne.
The Federal Supreme Court partially upheld the appeal of X. Treuhand AG and remanded the case to the lower court for a new decision.
Considerations
The Federal Supreme Court stated that X. Treuhand AG had invoked a right of withdrawal under Art. 107 para. 2 CO in its appeal, which the lower court had not taken into account. For this, it would have been necessary for X. Treuhand AG to have already raised these arguments in the cantonal proceedings, which was not the case.
Regarding the termination modalities of the contract, the Federal Supreme Court concluded that they violated the mandatory nature of Art. 404 para. 1 CO. According to the established case law of the Federal Supreme Court, the right of revocation in the agency relationship is mandatory and may not be contractually waived or…