Facts
Alfred Locher, the proprietor of the sole proprietorship A. Locher Maschinen and later of Maloc A. Locher AG, concluded an exclusive sales contract with the Italian general partnership Sicar s.n.c., Officine Meccaniche e Fonderie on January 10, 1975. In this contract, Sicar transferred the general representation and exclusive sales rights for their products in several Eastern Bloc countries to Locher. The contract had a term of two years with automatic extension if it was not terminated six months before expiration.
Locher and his successor company Maloc A. Locher AG later filed a claim for a declaratory judgment that the contract remained valid. They argued that the termination clause in Section 7 of the contract was partially null and void and that the contract had to be supplemented in accordance with the presumed intention of the parties.
Considerations
The Federal Supreme Court first established that, according to its case law, the partial nullity of a contractual clause under Art. 20 para. 2 CO can also affect the main points of the contract. However, the Commercial Court had denied this and argued that in the event of the nullity of the termination clause, the gap had to be closed by the dispositive statutory law.
The Federal Supreme Court saw this differently and examined what…