Facts
The plaintiff ([A.] Ltd, English limited company, manufacturer of rubber and plastic products) and the defendant ([B. GmbH] & Co. CartA, German limited partnership, plant builder for the plastics industry) concluded a contract for work in October/November 2014 for the manufacture and delivery of an SMC (Sheet Moulding Compound) resin mat plant with UV curing at a price of EUR 793'470.--. Payment was agreed in instalments (45% upon order, 45% after the pre-acceptance before shipment, 10% after signing the final acceptance protocol). The plaintiff paid the first instalment of EUR 357'001.50.
In April 2015, the 'wet pre-acceptance trials' provided for in the contract took place; the products did not conform to the specifications. The plaintiff considered this to be default under Art. 102 ff. CO or a contractually non-conforming delay under Art. 366 para. 1 CO and withdrew from the contract. The defendant attributed the failure to the unsuitable resin formula supplied by the plaintiff.
On 4 March 2016, the plaintiff sued before the Commercial Court of the Canton of Zurich for repayment of the advance payment and damages. The defendant requested dismissal of the action and filed a counterclaim for remuneration, additional expenses, costs of substitute performance, storage costs and damages totalling EUR 597'934.15. By judgment of 9 May 2019, the Commercial Court dismissed the action and awarded the defendant only EUR 4'043.08. The Federal Supreme Court partially set aside this judgment by judgment 4A_298/2019 of 31 March 2020 and remitted the matter; the defendant's refusal to continue work or to carry out further tests had not been justified, and the plaintiff could withdraw by analogy to Art. 366 para. 1 CO.
By judgment of 12 July 2021, the Commercial Court ordered the defendant to pay EUR 357'001.50 (advance payment), GBP 210'598.80, EUR 5'354.50 and CHF 38'652.75 (damages), each plus interest. It set the court fee at CHF 54'000.--, apportioned the costs at a ratio of 1/3 to 2/3, and awarded the plaintiff party compensation of CHF 17'500.--.
By civil law appeal of 14 September 2021, the defendant requested full dismissal of the action, alternatively dismissal to the extent of the awards in GBP, EUR and CHF, subsidiarily remittal, and a reallocation of the costs of the lower court. The plaintiff requested dismissal of the appeal. The suspensive effect was granted.
The main disputed issues before the Federal Supreme Court were: the binding effect of the remittal decision and the right to be heard; the validity of the reminder and of the withdrawal; the damage items for the factory hall (rent, electricity, insurance, business rates) and the duty to mitigate damage; the pre-litigation lawyer's fees; and the amount in dispute and court fee.
Considerations
Violation of the right to be heard and binding effect: The Federal Supreme Court rejects a violation of the right to be heard. The defendant confuses the reason for the failure of the tests (suitability of the formulas) with its established refusal to carry out further tests or to continue work. A renewed hearing after the remittal decision was not necessary. The complaint regarding the alleged dating of the refusal to 15 July 2015 does not satisfy the requirements for complaints; no dating was in fact made in the remittal decision.
Reminder and withdrawal: A reminder must designate the performance owed in such a way that the debtor recognises what is being demanded; interpretation follows the principle of trust. The first reminder of 24 June 2015 related only to a non-owed completion date and could not produce the effect of default. However, the letter of 2 September 2015 additionally expressly demanded the resumption of work and thus the performance owed. The lower court was entitled to interpret it in this way without violating federal law; the short grace period of seven days had to make this clear to the defendant. The creditor may set a new grace period as long as it has not exercised its election right under Art. 107 CO. Negotiations on the further course of action constitute a tacit extension of the grace period and not an exercise of the election right. The complaints of violation of Art. 107 ff. CO, Art. 2 CC and Art. 55 CPC, as well as of good faith, do not satisfy the requirements of reasoning or are unfounded. The withdrawal of 10 September 2015 was therefore valid, and the plaintiff is entitled to repayment of the advance payment of EUR 357'001.50.
Damages for factory hall: The rent of the factory hall is adequately attributable to the terminated contract. The plaintiff had to be ready for the delivery and installation of the machine; speculating on a later delivery date was not warranted. The period up to 25 July 2016 takes into account preparation time and hypothetical replacement procurement; the disputed actual delivery date of the replacement machine was not decisive for this, since no liability for damages until November 2016 was awarded. The assessment of evidence regarding the use of the hall (photographs) and regarding mitigation of damage (no sublease until August 2016 being reasonable) is not arbitrary; the defendant supplements the facts impermissibly and does not sufficiently engage with the reasoning of the lower court. The insurance costs were rightly awarded, since the generic assertion of non-payment is insufficient and the hall was rented over a longer period. As regards business rates: the contestation was sufficient, since the defendant expressly disputed the tax liability and the amount in its rejoinder. However, the lower court additionally relied on evidence (website of the British government, assessments of the council), and the assessment of evidence is not arbitrary. Overall, the award of the ancillary rental costs and taxes does not contravene…