Facts
B. had operated a dental practice in Zurich for decades. With a view to retiring from his professional activities, on December 31, 1999, he concluded a practice transfer agreement with A., under which he undertook to transfer his practice, including the entire patient file.
During the practice handover, differences arose between the parties, which is why on July 19, 2001, they modified the original practice transfer agreement with an amendment agreement. This made the payment of the remaining purchase price of CHF 340,000 conditional on the "faithful and contractual" conduct of both parties.
A. paid the first installment of CHF 350,000 on time, but refused to pay the second installment of CHF 340,000, as she was of the opinion that B. had not complied with the contract. B. then sued for payment of the outstanding purchase price installment.
Considerations
The Federal Supreme Court concluded that the agreement of a contractual penalty for the event of a breach of contract is generally permissible, even if the penalty payment does not consist of a positive payment, but of a loss of rights.
The lower court had denied the effectiveness of the contractual penalty clause, as the term "contractual penalty" was not used and the obligation to act "faithfully and in accordance with the contract" was…