Commission claim under agency contract: active promotion duty of the agent, burden of proof in restitution claims and amount in dispute in staged action

Facts

Parties and proceedings: The appellant (plaintiff and counterclaim defendant) is a Chinese national residing abroad. The respondent (defendant and counterclaimant) is a stock corporation with its registered office in V., which distributes fitness solutions. The prior instance is the Commercial Court of the Canton of Zurich, which ruled as the sole cantonal instance (judgment of 26 June 2019, HG170168-O).

Contract: On 13 September 2016 the parties concluded a 'Commission Contract', under which the appellant, as agent, was to broker business contacts and support the conclusion of contracts with these customers (§§ 1 and 3 of the contract). The subject matter of the proceedings is the appellant's claim to a fee for brokering the Chinese customer C.

Course of proceedings: On 15 August 2017 the appellant filed an action and ultimately demanded payment of EUR 120'075 plus interest at 5% from 26 February 2017, as well as removal of the debt enforcement objection (Rechtsvorschlag). Additionally, she initially sought information claims (production obligation regarding orders under the 'Master Franchise Agreement' and credit notes), a commission still to be quantified, and a commission for future orders. The defendant brought a counterclaim for repayment of the fee already paid due to failure of proper contractual performance, and for payment of an amount which the appellant allegedly received from the customer (EUR 38'162 plus interest).

Prior instance: The Commercial Court dismissed the action and upheld the counterclaim to the extent of EUR 28'162 plus 5% interest from 13 June 2017; to the extent of the remainder, it dismissed the counterclaim. It assessed the amount in dispute, including the later withdrawn prayers for relief 2-4, at EUR 442'425 for the latter requests.

Requests before the Federal Supreme Court: The appellant requests annulment of the prior instance's judgment, granting of the action, dismissal of the counterclaim and removal of the debt enforcement objection; alternatively, remittal to the prior instance. The respondent requests dismissal of the appeal. The prior instance waived a response. By order of 16 October 2019, the appeal was granted suspensive effect.

Considerations

Admissibility: The civil law appeal is directed against a final decision of a court of last instance in a civil matter (Art. 90, 72, 75 para. 2 lit. a FSCA). Since the prior instance was the sole cantonal instance, the appeal is admissible regardless of the amount in dispute (Art. 74 para. 2 lit. b FSCA). The time limit has been observed. Entry on the merits is subject to admissible requests and sufficient reasoning (Art. 42, 106 para. 2 FSCA).

Objections regarding facts: The Federal Supreme Court is bound by the facts established by the prior instance (Art. 105 para. 1 FSCA). A correction is only possible in case of obvious inaccuracy (arbitrariness) and must be decisive for the outcome (Art. 105 para. 2, 97 para. 1 FSCA). The strict principle of complaints applies (Art. 106 para. 2 FSCA). The appellant largely engaged in appellate criticism and did not demonstrate arbitrariness in the assessment of evidence; in particular, she did not address the prior instance's reasoning regarding the low evidentiary value of the thank-you e-mails (Art. 42 para. 2 FSCA). The objections regarding facts were not entered upon.

Interpretation of the contract and natural consensus: The prior instance assumed a natural consensus according to which the appellant had to actively broker and promote the conclusion of business with the customer in order to establish a claim to commission. Whether a natural consensus exists is a question of fact and is reviewed only for arbitrariness. Since a matching actual intention was established, the statements on normative consensus are immaterial. The objection was not heard for lack of an arbitrariness complaint.

Alternative objection regarding Art. 413 CO and Art. 418b CO: The appellant argued that a psychological connection between the agent's activity and the conclusion of the business would suffice. The Federal Supreme Court holds that the statutory provisions on remuneration of the brokering agent are dispositive in nature; the scope of the duties is determined primarily by the contractual agreement or the nature of the transaction. Since the prior instance found an agreed active promotion duty, the objection misses the point. Moreover, the appellant did not engage with the relevant considerations regarding insufficient substantiation in the cantonal proceedings; it is not possible to entertain this.

Burden of proof in the counterclaim: The appellant objected that the respondent bears the burden of proof for the non-owing of the commission paid and for the error. The prior…