Facts
[Y.] wanted to build a house and on June 11, 1981, concluded a general contractor contract with X., the "house architect" of Z., for the turnkey construction of a single-family house at a price of CHF 445,368.--. After the contracting parties had discussed project variants, X. submitted a modified project on September 11, 1981, with 1208.3 m3 of enclosed space and construction costs of CHF 621,185.35. [Y.] declared himself unable to finance this project and subsequently withdrew from the contract.
[Y.] filed a lawsuit against X. with the District Court of Höfe, essentially requesting that it be determined that the dissolution of the legal relationship between the parties is subject to the rules of the law of agency; furthermore, the defendant is to be obliged to reimburse CHF 45,000.-- and to pay CHF 1,700.-- in damages.
Considerations
The Federal Supreme Court decided that the general contractor contract is legally to be qualified as a contract for work and services. Regardless of the timing of the termination of the contract, the rules of the contract for work and services therefore apply.
The Federal Supreme Court states that the legal nature of the general contractor is disputed. According to one view, it is a pure contract for work and services, regardless of whether the project already exists or still needs to be developed. According to another opinion, there is a mixed contractual relationship that is divided into a planning phase governed by the law of agency and an execution phase governed by the law of contract for work and services.
However, the Federal Supreme Court adheres to its case law, according to which the independent preparation of execution plans and cost estimates, and possibly even the development of a construction project, can very well be the subject matter of a contract for work and services. Other tasks such as the awarding of work and construction supervision, on the other hand, are to be classified as agency. The overall contract of…