Facts
A. (Plaintiff, Buyer) acquired a property in X. with a residential building from B. (Defendant, Seller) in December 1999. The purchase contract excluded the warranty for physical and legal defects to the extent legally permissible. After the purchase, moisture defects occurred in the property, the remediation of which would, according to an expert opinion, cause costs of around one-third of the purchase price. The Plaintiff sued the Defendant for damages.
The Cantonal Court dismissed the claim, as it considered the warranty exclusion to be effective. The Plaintiff then appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court examined whether the defects were covered by the scope of the warranty exclusion clause. On the one hand, it is necessary to determine whether and to what extent the defects were actually present at the time of taking possession. On the other hand, it is necessary to assess whether the defects fall within the contractually defined scope of the disclaimer clause.
The lower court had not made any binding findings as to whether moisture defects of the extent…