Facts
The dispute concerns the calculation of the damages suffered by the buyer [H.] due to the non-performance by the seller [K.] of his obligation to deliver a Ferrari F40. On July 23, 1987, [K.] sold the Ferrari F40 to [H.] for 520,000 francs, but never delivered it. On May 18, 1989, [K.] received the car and resold it the same day to his brother, who then resold it to [Z.] six days later for 600,000 francs. [Z.] finally resold the car in July 1989 to a third party for 700,000 francs.
[H.] sued [K.] for payment of 980,000 francs, representing the difference between the resale price of 700,000 francs and the purchase price of 520,000 francs, plus interest. The cantonal court awarded [H.] damages of 138,259 francs 80, corresponding to the difference between the resale price of 700,000 francs and the purchase price of 520,000 francs, less the amount of 41,740 francs 20 already reimbursed by K.
Considerations
The Federal Tribunal dismissed K.'s appeal and confirmed the judgment of the cantonal court. It considered that the judge could base himself on criteria analogous to those of Article 191 paragraphs 2 and 3 of the Swiss Code of Obligations, even in the case of a civil sale, to calculate the damage suffered by the buyer. Thus, the judge can deduct the contractual price from the price at which the buyer could have resold the item, estimated according to the ordinary course of things, by analogy with Article 42 paragraph 2 of the Swiss Code of…