Facts
[A.] leased a gaming hall with an alcohol license to company F. SA. In 1984, [A.] informed [F. SA] of his intention to sell the gaming hall. [F. SA] accepted the transfer of the lease to E., on the condition that [A.] remains jointly and severally liable for the performance of the contract. In 1985, the gaming hall was taken over by company [Z. AG] represented by E. At the end of 1985, the hall was frequented by drug addicts, which led the police to demand measures from the tenant. [Z. AG] then decided to close the hall, considering that this would cost less than investing in surveillance measures. The hall was closed in February 1986 and [Z. AG] went bankrupt in May 1986.
[F. SA] then sued [A.] for payment of the 1986 rents. [A.] contested his liability, invoking the impossibility of performing the contract and his right to terminate the lease.
Considerations
The FSCA dismisses A.'s appeal. The closure of the hall by [Z. AG] did not result in an impossibility of performing the contract within the meaning of Art. 119(2) CO, as this closure was the result of a deliberate choice by [Z. AG] to avoid the investments necessary for proper operation in accordance with police requirements. Similarly, Art. 146 CO on the…