Facts
On 5 August 1992, the Zurich Cantonal Court (2nd Civil Chamber) dismissed an appeal filed by B. Corp., tenant, against an eviction decision rendered at the request of N. AG, landlord. On 14 September 1992, the lawyer of B. Corp. informed the Federal Court that due to an emergency hospitalization, he was prevented from meeting the appeal deadline expiring on 15 September 1992 and reserved the right to request a reinstatement of the deadline in accordance with art. 35 FJA. On 15 October 1992, he filed an application for reinstatement of the deadline and an appeal for review, arguing that he had been hospitalized from 12 to 17 September 1992 due to severe septicemia and had been unable to work until 5 October 1992.
N. AG requested that the reinstatement of the deadline be refused and that the appeal for review be declared inadmissible due to tardiness, or at least dismissed.
Considerations
The Federal Court examined whether the conditions for reinstatement of the deadline were met. Art. 35 para. 1 FJA requires that the applicant or their representative has been prevented without fault from acting within the deadline and that they request the reinstatement of the deadline within ten days following the end of the impediment.
Illness can constitute a non-faulty impediment if it is of a nature to prevent the applicant or their representative from acting within the deadline. However, the impediment ceases as soon as the representative is able to perform the omitted procedural act themselves or entrust it to a suitable substitute, or draw their client's attention to the need to observe a deadline.
In this case, the…