Facts
The dispute opposes Guyan and Christ AG to TIMON Vertriebsgesellschaft GmbH. TIMON Vertriebsgesellschaft GmbH claims from Guyan and Christ AG sums due under a brokerage contract for the mediation of the sale of properties to German buyers. Guyan and Christ AG invokes the cancellation of the sales contracts within the framework of authenticated termination contracts, which stipulate that the cancellation is due to the fact that the buyers invoke the nullity of the contracts under articles 20 and following of the Swiss Code of Obligations, as well as the lack of validity due to exploitation, deception, and essential error, all of which are grievances attributable to TIMON.
The cantonal court rejected TIMON's claims, considering that the statements of the parties in the authenticated termination contracts do not benefit from the increased probative force provided for in article 9 paragraph 1 of the Swiss Civil Code (CC), as they do not constitute findings made by the public official who drew up the act.
Considerations
The federal court examined the question of whether the statements of the parties in an authentic instrument benefit from the increased probative force provided for in article 9 paragraph 1 CC. The court considered that the increased probative force is in principle limited to the findings made by the public official who drew up the act, and not to the statements of the parties which are not verifiable by the public official.
The court also examined the question of whether the statements of the parties in an authentic instrument can give rise to a presumption of fact in favor of their accuracy. The court considered that the presumption of fact is a matter of free assessment by the judge, which…