Facts
This decision concerns a dispute between company X. (plaintiff) and company Y. AG (defendant) regarding the calculation of damages interest in the context of contractual liability. The plaintiff appeals a previous judgment, alleging that the damages interest has not been properly calculated.Considerations
The Federal Court begins by recalling the distinction between damages interest and default interest. Damages interest aims to place the creditor in the situation where they would have been if the damaging event had not occurred, while default interest sanctions the delay in payment. Although pursuing different goals, these two types of interest serve a similar function of compensating for the deprivation of the use of a sum of money.
Regarding the rate of damages interest in contractual matters, the Federal Court considers that there is no reason to differentiate it from the rate of default interest, unless the creditor proves a higher damage under Art. 106 para. 1 CO. Thus, the rate of 5% provided for in Art. 104 para. 1 CO also applies to damages interest, unless the parties are merchants, in which case the usual market rate applies under Art. 104 para. 3 CO.
However, the Court specifies that Art. 104 para. 3 CO only applies to objective commercial transactions, and not to all claims between merchants. In the present case, the plaintiff's claim does not directly arise from the commercial activity of the parties, so the 5% rate is…