Facts
The [A. GmbH] (Appellant) and the [B. AG] (Respondent) concluded a contract for work and services on 15 November 2012. The Appellant filed a request for preliminary taking of evidence regarding defects in the work and applied for the Respondent to be granted a deadline of 31 March 2013 to rectify the defects identified by the expert.
The single judge opened two separate files for the preliminary taking of evidence proceedings and the application for deadline setting. He discontinued the preliminary taking of evidence proceedings and did not consider the application for deadline setting, as the requirements of Art. 366 para. 2 CO were not met.
The Appellant appealed the ruling, which was dismissed by the Cantonal Court of Schwyz. The Appellant applied to the Federal Court to overturn the decision of the Cantonal Court of Schwyz and to declare the single judge of the District Court of Küssnacht competent to hear the application of 15 November 2012.
Considerations
The Federal Court applies the law ex officio and, as a rule, only considers the objections raised. The Appellant alleges a violation of the right to be heard, as the lower court did not provide reasons for its legal opinion on Art. 366 para. 2 CO. The objection is unfounded, as the lower court explained, by reference to the purpose of Art. 366 para. 2 CO, why it did not depend on the legal concept of delivery, contrary to the Appellant's view.
The Appellant complains that, according to the prevailing doctrine, Art. 366 para. 2 CO depends on whether delivery of…