Legitimate Appeal Against Lack of Form of an Oral Commission Agreement

Facts

Werner [A.] was employed as a traveling salesman at the company [F.] from December 2, 1974 to April 30, 1987. After termination of the employment relationship, a dispute arose over the amount of outstanding claims, in particular the commission credits. [A.] sued for payment of CHF 65,069.65, whereupon the District Court of Rorschach ordered the company [F.] to pay CHF 62,624.15 plus interest.

The defendant appealed against this judgment to the Cantonal Court of St. Gallen, requesting that it be set aside and the claim dismissed. The plaintiff joined the appeal and demanded that the claim be upheld in the reduced amount of CHF 64,576.15 plus interest. The Cantonal Court obliged the defendant to pay the plaintiff CHF 59,345.60 plus interest.

Both parties appealed the judgment of the Cantonal Court to the Federal Supreme Court.

Considerations

a) According to Art. 347a para. 1 lit. c CO, agreements on the remuneration and reimbursement of expenses of the traveling salesman must be recorded in writing. However, the formal requirement primarily serves to protect the employee and also has a clarifying and evidentiary function for the employer.

b) According to the case law of the Federal Supreme Court, the behavior of the parties may lead to the appeal against the lack of form being considered an abuse of rights. This is…