Facts
The case concerns a practice takeover contract between [X.] (the appellant) and [Y.] (the respondent). The parties had concluded an amendment agreement, according to which the remaining payment of the purchase price of CHF 690,000.-- was subject to the condition that both parties behave "faithfully and in accordance with the contract". In particular, the respondent was to ensure that his patients are introduced to the appellant and continue to be treated by her. Differences arose between the parties, particularly regarding the handover of patient records and the "Apollonia [Y.] " database software. The appellant did not pay the second instalment of the purchase price of CHF 340,000.--. The respondent thereupon sued for payment of this instalment. The High Court ordered the appellant to pay, but reduced the contractual penalty to CHF 50,000.--. The appellant appealed against this decision to the DFC.Considerations
The DFC holds that in reducing a contractual penalty under Art. 163 para. 3 CO, not only the damage that has occurred, but also the creditor's interest in the proper performance of the contract must be taken into account. The overall circumstances, in particular the conduct of the defaulting party and the interest of the other party, are to be considered. The DFC sees several breaches of contract in the conduct of the respondent: - He refused to hand over certain patient records on principle, instead of making efforts to obtain the consent of the affected patients. - He removed the "Apollonia [Y.] " database software from the appellant's computer. - He did not sufficiently fulfil…