Facts
The case concerns an employment contract between the plaintiff B. AG and the defendant Dr. A. According to the employment contract, the parties agreed on a contractual penalty of CHF 50,000 each per breach of contract, in particular against the non-competition clause or the duty of confidentiality. The plaintiff sued for payment of a total contractual penalty of CHF 150,000, as it was of the opinion that the defendant had breached the contract in two points.
The Cantonal Court of Lucerne ordered the defendant to pay a contractual penalty of CHF 50,000. Both parties appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court overturned the judgment of the lower court and dismissed the plaintiff's claim. It concluded that the contractual penalty agreed between the parties is partially aimed at compensating for financial disadvantages and thus has a compensatory character. Insofar as the contractual penalty concerns the liability of the defendant as an employee, it falls within the scope of Art. 321e CO.
The Federal Supreme Court stated that a strict liability contractual penalty with a compensatory character as well as a…