Facts
By a publicly notarized contract dated April 2, 1971, Gottfried Eichenberger sold to Arthur Widmer in Aeugst am Albis the plot No. 7'063, consisting of 7'600 m2 of meadowland, for the price of CHF 326'800. The transfer of ownership in the land register was scheduled for March 31, 1972, but was not carried out. On May 10, 1972, Eichenberger, who later died, sold the plot for the price of CHF 456'000 to a third party.
Widmer sued the heirs of Eichenberger for payment of CHF 178'770.30 in damages. The District Court of Affoltern upheld the claim in the amount of CHF 129'836.25. Both parties appealed to the Cantonal Court of Zurich, which saw the damage in the difference between the market value of the plot on May 10, 1972 (CHF 570'000) and the agreed purchase price (CHF 326'800) and upheld the claim in full.
Considerations
The Federal Supreme Court examined whether the Cantonal Court had misunderstood the legal concept of damages, based its calculation on inadmissible principles, or exceeded its discretion.
The Federal Supreme Court stated that damages represent an unwanted reduction in net assets, which can consist of a reduction in assets, an increase in liabilities, or lost profits. The Cantonal Court had rightly derived the liability of the defendants from Art. 97 para. 1 CO, as their legal predecessor had culpably made the fulfillment of the purchase contract impossible.
The defendants argued that Art. 191 paras. 2 and 3 CO only apply to fungible goods and therefore not to real estate purchases. However, the Federal Supreme Court rejected this. It is…