The Latest Case Law on Swiss Commercial Contracts
Case Law
IT contract, Sale of goods
Software in Asset Deals: Buying IP Rights on the Software, Buying Hardware or Buying a (mere) Copy of the Software?
The buyer was entitled to invalidate a sales contract (an asset deal for the sale of a car dealership that included software) for fraud that was committed by the seller (Art. 28 SCO) because the seller had not disclosed to the buyer that it did not own the intellectual property rights on the software but only had a license to use the software granted by a third-party licensor.
Agency agreement, Distribution agreement
“Sole Distributorship and Agency Agreement”: Should Commissions on Sales Made Directly by the Supplier be Paid to the Distributor?
“Sole Distributorship and Agency Agreement” qualified as an exclusive distribution agreement and not as an agency agreement resulting in no sales commissions for the distributor
Sponsorship agreement, Subsequent impossibility
Cancellation of Sports Sponsoring Agreements for Force Majeure (COVID-19): Which Part of the Sponsorship Fees must be Reimbursed to the Sponsor?
The cancellation clauses of the sponsoring agreements gave the sponsor the right to obtain the (partial) reimbursement of the paid sponsorship fees.
Agency, Share purchase agreement
How to prove the damage allegedly suffered by a purchaser for overpriced shares of a target company?
To establish the damage suffered by a purchaser of shares of a target company based on an inaccurate financial audit report requires to allege and prove the hypothetical financial situation of the purchaser had the damage not occurred as well as what decisions the purchaser would have made if it had been aware of the correct financial value of the target company.
M&A agreement, Share purchase agreement
Earn-out period in a M&A transaction: What happens if the parties have not defined it?
A two-year earn-out period defined by the courts (by filling a contractual gap).
Sale of immovable property
Selling by mistake: good faith as an impediment to avoiding the contract
A Seller who fails to clarify a point of essence and mention it to the Buyer(s) prior to concluding a contract cannot rely on its mistake in order to avoid the contract or to refuse its performance.