Facts
On March 14, 1975, X AG concluded a brokerage contract with Y for the sale of 15 condominiums. The contract provided for a contractual penalty of 1% of the purchase price in the event of a breach of contract. On June 30, 1975, X AG revoked the contract. Y then filed a claim for payment of the contractual penalty in the amount of 45,760 CHF.
The Commercial Court of the Canton of Zurich upheld the claim. X AG appealed to the Federal Supreme Court and requested the dismissal of the claim or, alternatively, the reduction of the contractual penalty to 10,000 CHF.
Considerations
The Federal Supreme Court states that X AG effectively terminated the brokerage contract despite the contractual termination restriction, as the statutory right of revocation under Art. 404 para. 1 in conjunction with Art. 412 para. 2 of the Swiss Code of Obligations (CO) cannot be excluded.
Furthermore, the Federal Supreme Court finds that X AG violated the exclusivity clause by allowing B AG to advertise the condominiums. By doing so, X AG breached the contract and incurred the contractual penalty.
However, the Federal Supreme Court sees reasons to reduce the contractual penalty under Art. 163…