Facts
The Schmid spouses wanted to rent out television and stereo equipment together with Ernst Schneider and founded Escophon AG for this purpose. At the end of July 1975, the Spreitenbach branch of the "Bank in Langenthal" presented various financing options and a draft framework agreement. As the parties could not reach an agreement, the Bank presented new drafts for a rental agreement and a framework agreement on September 26, 1975. From the beginning of October 1975, the Bank financed 80 rental contracts concluded by the now established Escophon AG according to these drafts.
On November 25, 1975, the Bank sent the final texts for the rental agreement and the framework agreement to Escophon AG. Escophon AG returned the signed agreement on December 17, 1975. The Bank then refused to finance any further rental contracts.
In November 1976, Escophon AG sued the Bank for payment of CHF 390,000 in damages. The Commercial Court of the Canton of Aargau ordered the Bank to pay Escophon AG CHF 39,500 plus interest.
Considerations
The Federal Supreme Court confirmed the decision of the Commercial Court. It found that the parties had agreed on the content of the agreement at the end of November 1975, but had assumed from the beginning that the contractual relationship should be recorded in writing. Therefore, no contractual obligation was established until December 8, 1975.
However, the Federal Supreme Court affirmed the Bank's liability from culpa in contrahendo. The Bank had involved Escophon AG…