Facts
M. s.r.l. (the plaintiff) purchased a used offset printing press from A. AG and commissioned B. AG (the defendant) to transport the press from X. to Y. (Italy). While loading the water exchanger, which was part of the purchased item, the suspension lugs tore, causing the water exchanger to fall from a height of approximately 3 to 4 meters onto the roof and become damaged. The plaintiff filed a legal claim for damages of Lit. 82,210,000.-, to which the defendant counterclaimed for payment of the outstanding freight charge of CHF 16,925.-.
The Commercial Court dismissed the claim and upheld the counterclaim in the amount of CHF 15,005.- plus interest. The plaintiff appealed this judgment.
Considerations
The Federal Supreme Court held that the plaintiff had not sufficiently substantiated the alleged total damage. According to the case law of the Federal Supreme Court, the party claiming damages must prove the damage. If the opposing party disputes the plausible allegations, the party bearing the burden of proof may be required to present the legally relevant facts so comprehensively and clearly that evidence can be taken on them.
In the present case, despite the court's instructions to substantiate the claim, the plaintiff failed to describe the specific damage or defects to the transported water exchanger. After the defendant had…