Facts
The appellant [A.] (represented by a lawyer) was sued for infringement of personality rights by the respondents, [B.] and the association [C.] (jointly represented by a lawyer). On 16 May 2019 the District Court of Münchwilen issued the first-instance decision (written copy dated 17 June 2019).
The appellant had an appeal filed on time against this decision. The deadline expired on 19 August 2019. The appeal brief bore this date, but it was only delivered in person to the Obergericht of the Canton of Thurgau on 20 August 2019. On 2 September 2019 the appellant applied for restoration of the deadline.
The legal representative argued that his secretary had been instructed to take the appeal brief to the post office. As the post office was already closed, she spontaneously decided to deliver the document in person to the Obergericht the following day. She acted for practical reasons and not with bad intent.
On 3 October 2019 the Obergericht dismissed the application and declined to hear the appeal. It held that the secretary's conduct as an auxiliary person was attributable to the lawyer. Moreover, a lawyer must organise his office so that timely posting is ensured, and he should have instructed the secretary accordingly. A narrow miss of the deadline does not reduce the degree of fault.
The appellant lodged a civil law appeal with the Federal Supreme Court, requesting that the decision be set aside and the case be remitted for consideration of the appeal. She also requested legal aid and suspensive effect. She complained of a misapplication of Art. 148 CPC and of a violation of constitutional minimum guarantees (Art. 9 and Art. 29 para. 1 Cst., prohibition of excessive formalism).
Considerations
The Federal Supreme Court first noted that the appellant could not rely in the abstract on fundamental rights or the principle of proportionality (Art. 36 para. 3 Cst.), since the restoration of deadlines is concretely regulated by law in Art. 148 CPC. It was necessary to show how this provision had been misapplied. Access to the court had not been blocked by the court itself, but by the lawyer's late filing. Procedural requirements such as deadlines are constitutionally permissible.
The 30-day appeal deadline (Art. 311 para. 1 CPC) and the obligation to file or post the document no later than the last day (Art. 143 para. 1 CPC) were undisputed. Under Art. 148 CPC, a grace period may be granted if the party makes it credible that it bears no fault or only slight fault; this also applies to appeal deadlines. The comparison with BGE 140 III 636 was not persuasive, as that case concerned a timely filing made with the wrong court, whereas here the deadline was missed.
The Federal Supreme Court addressed the doctrinal view that the fault of auxiliary persons is not attributable to the lawyer. It distinguished between the question of attributing third-party conduct and the question of the degree of fault. Attribution is governed by Art. 101 para. 1 CO: a lawyer's secretary is a typical auxiliary person whose acts are attributed to the lawyer and, through the representation, to the client. An analogy with Art. 55 CO (extra-contractual liability) was rejected, since the matter concerns contractual conduct of the mandate.
As regards the degree of fault, the hypothetical standard of culpability applies: the lawyer must be treated as if he had acted himself. Oversights…