Facts
A. is the owner of a property in the Old Town of Lucerne. D. is the owner of the neighboring property. A. submitted a building permit application for the renovation and conversion of his commercial building. D. filed a public law objection against it. The building permit was granted, and the objection was dismissed. D. challenged the decision with an administrative appeal. On May 30, 1994, the parties agreed that A. would pay D. CHF 30,000 in a settlement, and D. would withdraw the administrative appeal. A. transferred the amount, upon which D. withdrew the appeal.
A. later filed a lawsuit against D. demanding that he be ordered to repay the CHF 30,000. The lower courts upheld the claim, as the agreement of May 30, 1994 was considered immoral and therefore null and void. D. has appealed the judgment of the Cantonal Court.
Considerations
According to Art. 20 para. 1 of the Swiss Code of Obligations (OR), a contract is null and void if it violates good morals. Immorality can relate to the content of the contract or the purpose it aims to achieve.
The exercise of legal remedies is generally lawful, as long as it is not abusive, malicious, or contrary to good faith. The remunerated waiver of a legal remedy in construction proceedings is only immoral if it is solely intended to reduce the builder's impending delay damages. However, if the legitimate…