Facts
The dispute opposes real estate company A, owner of an apartment in Wabern, and B, tenant of this apartment. Real estate company A published an ad in the local press to rent the apartment, indicating a surface area of 160 m2. B visited the apartment and signed a rental agreement after brief negotiations. However, after receiving a plan of the apartment, B began to doubt the actual surface area of the apartment and measured the surface, which turned out to be 138 m2. He then informed the real estate company that he did not wish to maintain the rental agreement due to the difference in surface area.
The real estate company refused to terminate the contract and brought a lawsuit against B to obtain payment of rent and advertising costs. The court of first instance condemned B to pay part of the rent, but B appealed this decision.
Considerations
The Federal Court examined the question of whether B's error regarding the apartment's surface area was essential and whether it could be considered a fundamental error within the meaning of Article 24 paragraph 1 number 4 of the Code of Obligations (CO). The Court considered B's error to be essential, as he needed a larger apartment due to the increase in his family and had considered the 160 m2 surface area to be the smallest acceptable surface.
The Court also examined the question of whether B had acted in good faith when signing the rental agreement without checking the surface area of the apartment. The Court considered that B had acted in good faith, as he had no reason to doubt the landlord's indications and had been…