Waiver of oral hearing in contract-for-work proceedings; remittal to the Commercial Court

Facts

[A. GmbH] (plaintiff, appellant) was engaged in the years 2016 and 2017 by [B. AG] (defendant, respondent) as a subcontractor for plastering and drywall work at various construction sites. The contracts for work were concluded orally, with one exception.

The subject matter of the dispute in the present proceedings is a single construction site (plastering work on a residential development). The plaintiff issued invoices for this work totaling CHF 65'592.30. The defendant paid only three times CHF 16'000.--, whereupon the plaintiff initiated debt enforcement proceedings on 20 December 2017. The defendant lodged an objection (Rechtsvorschlag).

By action for recognition of debt dated 17 October 2018, the plaintiff requested that the Commercial Court of the Canton of Aargau order payment of the amount subject to enforcement, plus interest, and the removal of the objection. After the exchange of written submissions, an unsuccessful settlement phase and a reduction of the claim to CHF 64'700.--, the proceedings were transferred to the Commercial Court on 9 October 2019. The Vice-President set the parties a deadline to state whether they wished to waive a main hearing or to file written closing submissions.

The defendant waived the main hearing and oral closing submissions. In its reply dated 17 October 2019, the plaintiff initially maintained that a main oral hearing should be held, but then agreed to waive oral closing submissions and requested written closing submissions. By order dated 18 October 2019, the Vice-President assumed that both parties had waived the main hearing and set a deadline for written closing submissions. The plaintiff responded on 22 October 2019 and requested a new order, as it maintained its request for a main oral hearing. By order dated 23 October 2019, the Vice-President rejected this request.

By judgment dated 27 November 2019, the Commercial Court dismissed the action, insofar as it was not written off following the plaintiff's withdrawal of CHF 892.30. It ordered the plaintiff to pay court costs of CHF 5'360.-- and a party compensation of CHF 9'611.40.

The plaintiff filed an appeal in civil matters requesting that the judgment be set aside and the matter remitted. The defendant requested dismissal of the appeal. The Commercial Court otherwise waived a response.

Central question: Whether the plaintiff waived the main oral hearing within the meaning of Art. 233 CPC and whether the right to be heard and the right to a public hearing were violated.

Considerations

The appeal concerns a civil matter (Art. 72 FSCA) and is directed against a final decision (Art. 90 FSCA) of a higher cantonal specialist court in commercial disputes (Art. 75 para. 2 lit. b FSCA). There is no requirement regarding the amount in dispute (Art. 74 para. 2 lit. b FSCA). The time limit has been observed. Since the appeal is reformatory, a substantive request would in principle be required. A mere request for remittal is exceptionally sufficient if the Federal Supreme Court could not itself decide due to missing findings of fact (BGE 133 III 489 E. 3.1). Since the plaintiff alleges a violation of the right to be heard (Art. 29 para. 2 Cst.), which would have to lead to remittal, the appeal is admissible.

The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA), but only examines the complaints raised, unless legal defects are not obvious. The establishment of facts may only be corrected in cases of obvious inaccuracy (arbitrariness) (Art. 105 para. 2 FSCA), whereby the strict principle of complaint applies (Art. 106 para. 2 FSCA).

The plaintiff alleged a violation of Art. 6 para. 1 ECHR, Art. 14 para. 1 UN Covenant II, Art. 29 para. 2 and Art. 30 para. 3 Cst. as well as Art. 54, 228 and 233 CPC, because no main oral hearing was held. The Commercial Court had assumed that the plaintiff had tacitly waived the main hearing by agreeing to the waiver of oral closing submissions and requesting written closing submissions. Furthermore, the variant of a main hearing followed by oral closing submissions had, according to practice, not been offered.

Under Art. 228 ff. CPC, the parties are entitled to a main oral hearing; Art. 233 CPC, however, permits a joint waiver. The waiver must be declared by both parties, requires no particular form and may be made tacitly. Since the oral hearing serves fundamental rights guarantees such as the right to be heard and publicity, a waiver may not be readily presumed (BGE 140 III 450 E. 3.2). A partial waiver (only of party submissions, taking of evidence or closing submissions) is also possible, whereby a blanket waiver does not automatically count as a general waiver.

The Federal Supreme Court considers the complaint justified: The lower court could not assume that the plaintiff had waived the main oral…