Facts
The parties concluded a contract for work. The work delivered was defective and the principals carried out a timely inspection and notification of the defects. They chose to demand the rectification of the work by the contractor, in accordance with Art. 368 para. 2 CO. Despite two successive requests, the contractor refused to carry out the requested repair work, even though the rectification was possible without excessive expense.
When the contractor stubbornly refuses to perform his obligation to repair, the principal may invoke the general principles in the event of non-performance of an obligation in a bilateral contract, as provided for in Art. 102 et seq. CO. He may then either persist in demanding the due performance, or waive the performance and claim damages for non-performance, or withdraw from the contract.
In the present case, the principals have chosen to waive their right to have the work repaired by the contractor and to demand from the latter compensatory damages corresponding to the value of the free service that the contractor should have provided by performing his obligation to repair the work.
Considerations
The Federal Tribunal ruled that the principals did not mix or confuse the rights of the principal in the event of a defect in the work. They opted for the free rectification of the work by the contractor and, having been unable…