Buyer's Claim for Damages due to Unjustified Withdrawal from the Contract by the Seller

Facts

M. sold his property Schloss Freidorf to S. on May 6, 1977. On June 28, 1977, S. entered into a publicly notarized preliminary contract with T. AG, which had been founded by M. as the main shareholder. In this contract, S. promised to renovate the property, divide it into condominium units, and sell two apartments in the attic to T. AG for the prices of CHF 147,000 and CHF 142,000 (including garages).

Differences arose during the construction work because T. AG was of the opinion that the entire attic belonged to the two apartments intended for it, while S. wanted to reserve a part of the attic for the other condominium owners. When T. AG insisted on its position, S. considered himself entitled to withdraw from the contract and sold the two attic apartments to third parties on July 17, 1968.

With its claim filed with the District Court of Arbon on April 19, 1979, T. AG demanded CHF 150,000 in damages from S., calculated as the difference between the value of the two apartments, including garages, and the contractual purchase price. The District Court of Arbon concluded that the defendant had neither declared the withdrawal nor had he been entitled to withdraw. After obtaining an expert opinion, it upheld the claim for the reduced amount of CHF 78,000 plus 5% interest since March 7, 1979. The Cantonal Court of Thurgau confirmed this judgment on September 11, 1984.

The defendant has appealed the judgment of the Cantonal Court with a constitutional complaint and an appeal. The complaint has been dismissed to the extent that it was admissible.

Considerations

1. The plaintiff is claiming compensation for the damage caused by the non-fulfillment of the preliminary contract for the sale of the apartments in the attic. The defendant objects, arguing that he was entitled to withdraw from the preliminary contract because the plaintiff refused to accept the apartments with the renovation he had planned.

The Federal Court concludes that the defendant was not effectively able to withdraw from the contract, as he did not fulfill the necessary requirements according to Art. 107-109 CO. In particular, he…