Facts
The plaintiff Breu operates a restaurant in Teufen and purchased an electric baking appliance "FRITOUT" from the defendant general partnership H. Oberländer's Heirs, Apparatus Construction, Romanshorn, in May 1960. On July 11, 1961, a fire broke out in the plaintiff's hotel kitchen, causing significant damage to the building and furnishings. The cause of the fire was that the thermostat of the baking appliance was not fully installed, as the temperature sensor was not correctly inserted.
The plaintiff filed a claim against the defendant for compensation of the damage not covered by the fire insurance, amounting to approximately CHF 20,000, plus interest. The lower instances dismissed the claim. The plaintiff then appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the plaintiff rightly does not base his claims on the provisions on warranty for defects in the purchased item or non-performance of the contract, as these claims are time-barred. Instead, the plaintiff asserts the defendant's liability for tort.
The Federal Supreme Court denies the defendant's liability under Art. 567 para. 3 CO for the fault of its partners in tort, as the partners were not obliged to inspect the appliances manufactured by the defendant themselves.
However, the defendant's liability as the principal under Art. 55…