Admissibility of an agreement on the commencement of the limitation period in a contract for work and services

Facts

[X. AG] (the appellant) had concluded a contract for work and services with [Y. AG] (the respondent) for the construction of a new building for Canton [A.] . The general terms and conditions (GTC) of the appellant stipulated that the start of the warranty and limitation periods was not to be calculated from the acceptance of the partial work of the subcontractor (the respondent), but only from the acceptance of the entire work by the client.

After the delivery of the entire work, the appellant raised a complaint about defects and sued the respondent. However, the Commercial Court dismissed the claim on the grounds of limitation. The appellant then filed a civil appeal against this judgment.

Considerations

The DFC concluded that the regulation in the GTC on the commencement of the limitation period is admissible. Art. 129 CO, which prohibits the advance waiver of the limitation period, is not applicable here, as the limitation of claims for defects is regulated in Art. 371 CO. The parties can modify the…