Facts
On November 17, 1961, Mrs. Schenker of Hossle purchased a plot of land for 20,000 Swiss francs. Mrs. Schenker mistakenly assumed that the plot was buildable, while in fact there was a construction ban on it. Thereupon, Mrs. Schenker sued Hossle with the aim of rescinding the purchase contract.
The District Court dismissed the claim, as Mrs. Schenker had been informed about the construction ban before the conclusion of the purchase. However, the High Court of the Canton of Aargau declared the purchase contract invalid due to a fundamental error and obliged Hossle to pay Mrs. Schenker 20,000 Swiss francs plus interest.
Hossle appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court upheld the judgment of the High Court. It found that the plaintiff had mistakenly believed at the time of the conclusion of the contract that she was buying buildable land. This error was material under Art. 24 para. 1 no. 4 of the Swiss Code of Obligations, as the buildability was a necessary basis of the contract for the plaintiff, and she was entitled to assume this in good faith in commercial transactions.
The fact that the warranty was excluded in the purchase contract does not prevent the plaintiff from considering the buildability as the…