Facts
The case concerns a legal dispute between L. and the banking firm D. The High Court of the Canton of Zug had, in its judgment of 12 November 1991, not applied German law, although it should have been applied to the question of the conclusion and effects of an alleged loan contract. The defendant (banking firm D.) complained that the High Court had wrongly found that the content of German law had not been proven.
The Federal Supreme Court concluded that the defendant's complaint was justified. According to the provisions of the Federal Act on Private International Law (PILA), an appeal can be made on the grounds that foreign law was not applied as prescribed by Swiss private international law, or that it was wrongly found that the determination of foreign law was not possible. This also includes the complaint that the lower court had obviously wrongly found that the content of foreign law had not been proven.
In property-related claims such as the present case, the parties may be required to prove the content of foreign law. This is about proof, not evidence in the strict sense, so that the ordinary rules of evidence do not apply. However, the right to be heard must be observed and a party must not be surprised by the application of foreign law.
Considerations
The Federal Supreme Court concluded that the cantonal instances had misunderstood the meaning and scope of the relevant provisions of the PILA. The documents submitted by the defendant, including an expert opinion, a counter-opinion and a further statement, have sufficiently proven the content of German law. It was therefore not necessary for the defendant to request a court expert opinion or to request information within the meaning of the European…