Facts
[A. AG] (the appellant) and [B. AG] (the respondent) concluded a contract for work on 21/28 February 2008 for the installation of floor coverings in two buildings with a total area of over 16,000 m2. After completion of the work, defects in the floor covering occurred, whereupon [B. AG] had an investigation carried out. This revealed that the floor covering had an insufficient layer thickness.
Negotiations between the parties followed. [A. AG] proposed a remedial work in 2-3 "sample rooms", which it carried out in July 2009. However, [B. AG] demanded a complete remedial work of the entire floor covering and set a deadline for [A. AG] . As [A. AG] refused the remedial work, [B. AG] commissioned a third-party company to install a new floor covering at a cost of around CHF 2.1 million.
The Commercial Court of the Canton of Bern found that the requirements for a substitute performance by [B. AG] were met. [A. AG] then appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal of [A. AG] . It concluded that [A. AG] had expressly refused the complete remedial work of the floor covering demanded by the client [B. AG] . Thus, the requirements for a substitute performance by [B. AG] pursuant to Art. 169 para. 2 SIA-Norm 118 were fulfilled, without [B. AG] having to set a grace period for [A. AG] in advance.
Furthermore, the Federal…