Facts
O. AG (the claimant) and S. (the defendant) concluded an agency contract with exclusive representation rights for the sale of the defendant's products in certain European countries on 18 February 1988. The contract provided for a 3% commission on all direct and indirect sales. On 28 September 1990, the defendant terminated the contract with 12 months' notice. The claimant then brought an action before the District Court of Frauenfeld to obtain payment of the commission on sales as well as a goodwill indemnity in the event of termination of the contract. The District Court and the Cantonal Court granted its claims. The defendant appealed to the Federal Supreme Court.Considerations
The Federal Supreme Court partially upheld the defendant's appeal and referred the case back to the lower instance for further investigation.
Firstly, the Federal Supreme Court considered that the defendant could not invoke the exception of non-performance (Art. 82 CO) to refuse payment of the commission, as the impossibility for the claimant to carry out its activity in Great Britain was due to the defendant's faulty conduct in not terminating its contract with its former representative in that country.
Secondly, the Federal Supreme Court held that if the impossibility for the claimant to carry out its activity in Great Britain was indeed attributable to the defendant's fault, the latter should indemnify the claimant…