Facts
By a publicly notarized preliminary contract dated 21 September 1971, Hans Grawehr undertook to sell to Ernst Sahli several parcels of agricultural land with buildings for a price of CHF 720,000. In November 1972, the purchase contract was publicly notarized, and the change of ownership was registered in the land register. Sahli paid the agreed purchase price but refused to pay Grawehr an additional oral agreement of CHF 100,000.
In January 1974, Grawehr filed a claim for a declaration of nullity of the two publicly notarized contracts, as the actual purchase price had been CHF 100,000 higher. The High Court dismissed the claim, as it considered the invocation of the formal defect to be an abuse of rights.
Considerations
The Federal Supreme Court confirmed the decision of the High Court. It stated that the nullity of the form is irrelevant between the parties and the invocation thereof is inadmissible if it violates good faith and therefore constitutes an obvious abuse of rights within the meaning of Art. 2 para. 2 of the Swiss Civil Code. The voluntary performance of the purchase contract by the parties is of particular importance in this respect.
The Federal Supreme Court saw several circumstances that made the invocation of the formal defect appear to be an abuse of rights: Firstly, the plaintiff Grawehr had knowingly allowed the start of construction on the property before the transfer of ownership, although he could have prevented the payment of the additional CHF 100,000. Secondly, the…