Facts
This case involved a purchase contract for a computer system between A. AG (plaintiff) and B. AG (defendant). The parties had agreed that delivery should take place by August 31, 1986 at the latest. Since the defendant did not deliver by this deadline, the plaintiff resold the system to company [C.], reserving a contractual penalty of FF 300,000 (approximately CHF 78,600) in the event of non-compliance with the delivery date.
The plaintiff sued the defendant for compensation of this contractual penalty. The High Court initially dismissed the claim, as the plaintiff had not yet had to make any payments to company [C.] and thus no damage had occurred. The plaintiff appealed against this decision.
Considerations
The Federal Supreme Court overturned the judgment of the High Court and referred the case back for re-evaluation. It stated that the damage had occurred with the incurrence of the liability towards company [C.], regardless of whether the plaintiff had already paid the contractual penalty. The decisive factor was that the plaintiff was obligated to perform and the claim of company [C.] was legitimate.
The Federal Supreme Court emphasized that the damage does not only occur with the actual loss of cash assets, but already with the impairment of the balance sheet assets. Therefore, the High Court had misunderstood the legal concept of damage by denying its occurrence on the…