Dismissal of appeal against the refusal to restore the deadline for the advance on costs

Facts

Parties:
Appellant ([A.] ) against respondent ([B.] ).

Facts:
The respondent wanted to purchase an apartment from the appellant in 2016 and made a down payment of CHF 70,000.--. The purchase agreement did not materialize. The respondent sued for the refund of the down payment in 2017. The District Court of Meilen partially upheld the claim. The appellant filed an appeal, and the Higher Court set a deadline for the appellant to pay an advance on costs of CHF 9,200.--. The appellant did not pay the advance on costs and requested payment in installments, which the Higher Court rejected. By decision of 23 August 2018, the Higher Court did not admit the appeal. The appellant requested the restoration of the deadline, which the Higher Court rejected by decision of 14 November 2018.

Considerations

The Federal Supreme Court examines ex officio and with free cognition whether a remedy is admissible (Art. 29 para. 1 FSCA). The contested decision of the Higher Court constitutes a final decision within the meaning of Art. 90 FSCA, which can be challenged by appeal to the Federal Supreme Court.

Pursuant to Art. 148 para. 1 CPC, the court may grant an extension to a party in default if the party demonstrates that it is not at fault or is only slightly at fault. The default must be based on no fault or slight fault. The lower court considered that the appellant had received the negative decision of 17 August 2018 within the ongoing extension period and thus no slight fault was present.

The appellant submitted to the Federal Supreme Court that he had not received the decision of 17 August 2018. New facts and evidence may only be submitted to the Federal Supreme Court to the…