Facts
The seller [A.] (appellant) is the owner of a parcel on which a factory building is located. In 2009, he came into contact with the buyer [B. AG] (respondent), as the latter planned to build a new branch on the parcel. The parties concluded a written "preliminary contract for a purchase contract with power of attorney", which, however, was not notarized. According to this preliminary contract, the buyer was to bear all project development costs and conclude a final purchase contract by 31 December 2011 at the latest. Art. 8 of the preliminary contract provided for compensation in the event that the acquisition of the property did not materialize. When the construction project was not feasible, the seller, based on Art. 8 para. 1 lit. a, demanded compensation of CHF 192,000.-- for the duration of the reservation. The buyer disputed the validity of the compensation agreement due to the lack of public certification.Considerations
The Federal Court confirmed the decision of the Cantonal Court, according to which the compensation agreement pursuant to Art. 8 para. 1 lit. a of the preliminary contract is subject to the formal requirement of public certification and is therefore invalid. The lower court correctly applied the principles on the formal requirement of ancillary agreements in real estate purchase contracts. The compensation agreement is closely linked to the main obligations of the preliminary contract and does not constitute an independent…