Facts
This judgment deals with the question of whether a contractual penalty agreed upon can be reduced under Art. 163 para. 3 of the Swiss Code of Obligations (CO). The defendant appeals against the amount of the contractual penalty, which the Commercial Court had not reduced.
The Federal Supreme Court states that a judicial reduction of the contractual penalty is only justified if the agreed amount exceeds the reasonable measure still compatible with law and equity. Various circumstances must be taken into account, such as the nature and duration of the contract, the severity of the fault and the breach of contract, the creditor's interest in compliance with the prohibition, and the financial situation of the parties.
The decisive factor is not the actual damage incurred, but the maximum possible damage that could have occurred due to the breach of contract. The contractual penalty is an independent obligation, which is to be distinguished from liability…