Withdrawal of the Customer from the Contract for Work and Calculation of Damages

Facts

In this case, it was about a contract for work between Brunner-Möbel SA and Peter Kropf for the construction of two motels. Kropf declared withdrawal from the contract and commissioned a third party to complete the work. Brunner-Möbel SA asserted claims for damages against Kropf.

The Federal Supreme Court had to decide whether the customer's withdrawal under Art. 377 CO is effective, even if he does not combine it with an offer to compensate for the damage, as the lower court had assumed. Furthermore, it was about the calculation of the damages that the customer owes under Art. 377 CO.

Considerations

The Federal Supreme Court came to the following conclusions

• The withdrawal under Art. 377 CO takes immediate effect, even if the customer does not combine it with an offer to compensate for the damage. It is up to the customer to prove that he has terminated the contract for a reason that exempts him from the obligation to pay damages.
• For the calculation of damages under Art. 377 CO, two methods are possible: the deduction method (deduction of the contractor's savings and other gains) or the positive method (determination of the actual expenses and…