Facts
In this case, it was about a contract between D. AG and L. for the delivery of spruce and pine raw timber. L. refused to accept further deliveries, whereupon D. AG filed a lawsuit for payment of the purchase price.
The High Court of the Canton of Thurgau dismissed the claim, as D. AG had not yet released itself from its own performance according to Art. 82 CO. D. AG then appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the High Court wrongly dismissed the claim. According to Art. 82 CO, the creditor must either have already performed or offer performance in order to be able to demand performance from the debtor. Depositing the goods is not required for this.
The Federal Supreme Court finds that D. AG has provided a valid verbal offer through repeated requests to L. to collect the goods, as well as its declaration in the proceedings to perform in a reciprocal manner. This has allowed D. AG to ward off the objection of the unfulfilled contract under Art. 82 CO.
The Federal…