Facts
On December 21, 1981, the Genossenschaft M. sold to Mrs. [N.] a building plot of 835 m2 located in the municipality of Riom-Parsonz for the price of 120,000 Swiss francs. The contract was notarized by a notary, but it was found that the representative of the Genossenschaft was not the one indicated in the deed. Mrs. [N.] paid the price and was registered as the owner in the land register. However, the « Feinerschliessung » of the plot, which was to be carried out by autumn 1982 at the latest, was delayed and not even realized after two years. Mrs. [N.] then declared her withdrawal from the contract on January 19, 1984.
The Genossenschaft contested this withdrawal and Mrs. [N.] brought an action before the court to have it declared that the sales contract was null and void due to her withdrawal or the non-fulfillment of a condition. The court of first instance of Plessur granted her request, but the Genossenschaft appealed to the cantonal court of Grisons, which confirmed the decision, but considered that the sales contract was null and void due to a formal defect.
Considerations
The Federal Court examined the question of whether the formal defect of the sales contract entailed its absolute nullity and whether Mrs. [N.] had acted abusively by invoking this formal defect. The Court considered that the sales contract did not meet the requirements of authentic form, as it did not correctly mention the relationship of representation between the Genossenschaft and its representative.
The Court also examined the question of abuse of right and considered that Mrs. [N.] had acted abusively by invoking the formal defect, as she had already executed the contract in good faith and without knowing the formal defect. The Court also considered that the beidseitige Erfüllung des Vertrages…