Facts
The case concerns a farmer (Kunz) and an architect (Stalder) who concluded a real estate purchase contract. Kunz was incapable of judgement at the time of the conclusion of the contract, which was later determined. Stalder sued for the award of ownership of the properties, while Kunz dismissed the claim and filed a counterclaim for payment of the remaining price.
The Cantonal Court declared the purchase contract null and void due to Kunz's incapacity to judge. However, it obliged Kunz to reimburse Stalder for a portion of the expenses and payments, based on Art. 54 Para. 1 CO.
Kunz appealed against the obligation to pay compensation under Art. 54 Para. 1 CO. The Federal Supreme Court had to decide whether a person lacking capacity to judge is liable for the damage from a void contract.
Considerations
The Federal Supreme Court changed its previous case law and decided that Art. 54 Para. 1 CO is also applicable to breaches of contract by persons lacking capacity to judge. This provision establishes strict liability on the grounds of equity, regardless of whether the conduct of the person lacking capacity to judge was tortious or contractual.
The person lacking capacity to judge should be liable for the risks that their condition poses to the environment. The risk of harming third parties is no less great in contractual behavior than in tortious behavior. Therefore, in both cases, there is the same need to protect the injured…