Obligation of the Defendant to Pay the Due Instalments Concurrently

Facts

By contract dated 13 September 1996, Rolf Weber (Plaintiff) sold the business "IPK, Institute for Personnel Matters and Executive Selection, Rolf Weber" to Rolf Frick (Defendant) for the price of CHF 155,000 and undertook to have his name deleted from the Commercial Register. The Defendant made the first payment of CHF 30,000, but on 3 July 1997 declared his withdrawal from the contract, as the Plaintiff had not signed the declaration for the deletion in the Commercial Register. The Plaintiff filed a claim for payment of the remaining CHF 125,000 plus interest.

Considerations

The Federal Supreme Court concluded that the Plaintiff had an unstable pre-performance obligation. Although the Higher Court dismissed the claim as the Plaintiff had not yet rendered his performance, it should have ordered the Defendant to pay the due instalments concurrently. This is because the Plaintiff claimed to have…