Facts
Immorex AG sold Max Werz a building plot in Goldach and concluded a "work and general contractor contract" with him, under which Immorex AG undertook to construct a 9-family house on this plot, ready for occupancy, for a lump-sum price of CHF 575,000.
Werz moved into an apartment in the new building on February 1, 1965, but refused to pay the remaining CHF 15,000 of the agreed contract price, as not all the agreed work had been carried out. The Cantonal Court of St. Gallen upheld Immorex AG's claim for payment of the remaining contract price, whereupon Werz appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court remanded the case to the lower court. It found that the contract between the parties was legally to be assessed as a contract for work and services within the meaning of Art. 363 et seq. of the Swiss Code of Obligations (OR). The decisive factor is that the work was not completed at the time of the purchaser's move-in on February 1, 1965, as it deviated from the construction project in several respects.
Since the work had not been delivered at that time, the defendant had the right to claim a reduction in the price and to withhold the outstanding balance of the contract…