Facts
On August 28, 1985, the J. couple rented a 5 1/2 room apartment from the V. couple in Egg, in the canton of Zurich. The lease began on December 15, 1985, and was terminable for the first time on September 30, 1988. On February 2, 1986, the tenants terminated the lease prematurely, with effect from May 15, 1986. They left the apartment in June 1986. The tenants paid the rent in full until the end of October 1986, then reduced their payments and finally stopped paying the rent in March 1987. The return of the apartment took place on May 18, 1987.
The owners, the V. couple, brought an action against the tenants, the J. couple, to obtain payment of the unpaid rent, including ancillary costs, for the period from November 1, 1986, to June 30, 1987, as well as reimbursement of advertising costs. The Zurich district rent court condemned the tenants to pay a certain sum, which the tenants contested on appeal before the Zurich cantonal court. The cantonal court slightly reduced the amount to be paid, but its decision was annulled by the Zurich cantonal court of cassation. The cantonal court then rendered a new decision, granting the owners the same amount as previously.
Considerations
The Federal Court examined the provisions of Article 264 CO and Article 257 aCO, which govern the premature return of the rented property and the circumstances allowing the landlord to refuse a replacement tenant presented by the tenant. The Court considered that the landlord may refuse a replacement tenant who is only willing to pay a significantly lower rent than the current rent, even if the tenant is willing to pay the difference in rent directly to the landlord until the contractual expiry of the lease.
The Court also examined the provisions of Article 44 Abs. 1 OR, which allow the judge to take into account the circumstances of the case and to distribute the risks fairly between the parties. The Court considered that the landlord is not obliged to accept a replacement tenant who does not pay the same rent as the initial…