Facts
The company [A. AG], based in the canton of Thurgau, had maintained business relations with the Italian company [F.] since 1985. [A. AG] cancelled all contracts and refused to take delivery of the goods in January and February 1987. The goods in question were shipments of fabrics for which company [F.] had invoiced a total of 173'256.01 DM. Company [F.] brought a lawsuit before the Münchwilen district court in June 1987. The district court condemned [A. AG] to pay 143'802 CHF with interest in January 1988. The decision was confirmed by the Thurgau cantonal court in September 1988.
The parties involved are A. AG (defendant) and company F. (plaintiff). The key dates are 22 January and 3 February 1987 (cancellation of contracts), 5 March 1987 (payment reminder), June 1987 (filing of the lawsuit), 14 January 1988 (district court decision) and 8 September 1988 (cantonal court decision).
Considerations
The Federal Court examined whether company [F.] had violated its obligation to minimize damages by not selling the goods immediately in accordance with Article 93 paragraph 1 of the Code of Obligations (CO). The Court found that this provision does not create an obligation for the seller to sell the thing due, but that this obligation may arise from the principle of good faith or directly from the contract.
The Court also examined the doctrinal opinions on the matter, which recognize that the debtor may be required to sell the…