Facts

Parties:

  • [A. GmbH] (appellant, contractor)
  • [B.B.] and [C.B.] (respondents, client)

Facts:

  • In October 2010, a construction contract for timber construction work was concluded, with an agreed contract price of CHF 372,045.85.
  • In July 2011, the contractor submitted a final invoice for CHF 496,429.00, with an outstanding amount of CHF 179,930.00 after deducting advance payments.
  • The clients made a further payment of CHF 56,000.00, leaving an outstanding amount of CHF 126,407.00.
  • The contractor applied for the provisional registration of a builder's lien, which was later definitively confirmed.
  • The contractor sued for the definitive registration of the builder's lien and payment of the outstanding contract price.
  • The District Court of St. Gallen ordered the clients to pay CHF 126,407.00 and partially upheld the counterclaim of the clients.
  • The Cantonal Court of St. Gallen partially set aside the decision and ordered the contractor to pay CHF 24,542.60 to the clients.

Main issues in dispute:

  • Completion of the conciliation procedure for the performance claim.
  • Applicability of the rule of unusualness to Art. 154 para. 3 SIA-Norm 118.
  • Applicability of Art. 10 no. 3 of the construction contract and existence of a power of attorney by tolerance.

Considerations

The previous instance did not rule on the performance claim of the appellant because it had not gone through a conciliation procedure. According to Art. 198 lit. h CPC, a conciliation procedure is required, unless the court has set a time limit for the claim. The previous instance argued that this exception only applied to the claim for definitive registration of the builder's lien, not to the performance claim. The Federal Supreme Court confirmed this view and pointed out that the list of exceptions to the conciliation procedure was exhaustive and did not allow for a cumulation of claims.

The previous instance denied the applicability of Art. 154 para. 3 SIA-Norm 118 due to the rule of unusualness. This rule states that unusual clauses in general terms and conditions do not apply if the weaker party has not been specifically drawn to…