Facts
A. was employed as a waiter for B. in the restaurant X. in Uster. On April 27, 2004, A. filed a lawsuit with the District Court of Uster, requesting that B. pay him a total of CHF 18,091.85 plus 5% interest since October 1, 2003. At the main hearing on June 15, 2004, A., who was not represented by a lawyer, was asked to present the reply. He was obviously unable to do so, and the judge, pursuant to § 29 para. 2 CPC/ZH, instructed him to seek a lawyer. Nevertheless, the judge immediately conducted a conciliation hearing, which ended with the withdrawal of the claim.
The day after the main hearing, A. consulted a lawyer, who revoked the settlement due to defects of will. The Cantonal Court dismissed the appeal, and the Cantonal Court of Cassation dismissed the cantonal nullity complaint.
Considerations
The Federal Court held that the capacity to act is part of the capacity to sue. If a party is obviously unable to properly conduct its own case, the court may, pursuant to § 29 para. 2 CPC/ZH, require the party to appoint a representative.
In the present case, it was undisputed that the complainant's capacity to act for the oral submission of the reply…