Facts
The appellant, [A.] , began studying with the respondent, [X. AG] , in 2004. In January 2007, the parties agreed that the appellant could take the two-year "Higher Diploma" course. The appellant paid semester fees of CHF 21,500.-- to the respondent. The general terms and conditions of the "Higher Diploma" course provided that paid semester fees would not be refunded if the student unilaterally terminated the contract after the course began. The appellant did not attend the course and terminated the contract at the end of May 2007. She demanded a refund of the semester fees and lost before the High Court of the Canton of Lucerne.
The High Court concluded that the provision of Art. 404 para. 1 CO in mandate relationships, where the parties are not in an absolute relationship of trust, was not mandatory. The appellant filed a complaint with the FSCA, arguing that the right to terminate at any time pursuant to Art. 404 para. 1 CO was mandatory and could not be contractually waived.
Considerations
The FSCA examined whether the complaint was admissible in civil matters. It found that the amount in dispute did not reach the relevant amount, but the appellant argued that a question of fundamental importance was at stake. However, the FSCA concluded that the question of the mandatory nature of the right to terminate at any time pursuant to Art. 404 para. 1 CO had already been decided several times and did not constitute a question of fundamental importance.
The FSCA then examined whether the lower court had committed arbitrariness in applying the law by denying the mandatory character of Art. 404 para. 1 CO. It found that the lower court had deviated from the FSCA's jurisprudence, but that the result of the contested decision could also be justified in accordance with federal law. The FSCA concluded that the complaint of arbitrariness was unfounded, as the lower court's result could also be justified in…