Case Law

To Whom Belong the Copyrights on a Software Developed by a University Researcher?

Based on the applicable university regulations, the copyrights on the software developed by a PhD candidate who was working as a researcher/employee at a Swiss public university (the University of Lausanne) within the framework of her employment agreement were found to be owned by the University.

Can a long-term subcontract for mail management services be terminated if the main contract is terminated?

The subcontract for mail management services at issue is an innominate contract that consequently cannot be terminated before the end of its term without just cause.

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.

“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

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.

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.

Smoke on the characterization of the contract

The difference between a Contract for Work and Services and a Simple Agency Contract, and its impact on the calculation of damages.

The limits of unilateral choice of forum clauses

A forum selection clause unilaterally inserted by a party into an email or invoice is ineffective if there is no express acceptance by the other party.

Breach of an exclusivity obligation in a M&A advisory contract: no liability?

Consequences of a client breaching the exclusivity obligation in a Merger and Acquisition advisory contract that provides for a success fee for the broker.

Unsuccessful claims of a former distributor: no indemnity for goodwill and no set-off of counterclaims

Valid contractual waiver of set-off and no goodwill indemnity because the distribution contract was not exclusive.

A party acting as a representative once, may not be a representative twice.

In the absence of a validly conferred power of attorney, the principal shall only be bound if the third party can rely on its own legitimate representation of the situation.

Unilateral termination of a long-term IT contract: when is good cause not good enough?

The existence of good cause denied in unilateral termination of a long-term IT contract, despite claims of outdated equipment, repeated technical issues and poor maintenance services.

Contract for the chairman of a listed company: how to manage a conflict of interests?

A stock corporation whose board of directors is reduced to two members due to a dispute among shareholders cannot validly enter into a contract of mandate (director) and employment (manager) with the chairman of the board without violating the prohibition of self-contracting.

No matter what… it’s art!

The duty to inform on a specific feature of an artwork exists only if a seller should assume that this feature might influence the decision of a buyer to conclude a contract or even the conditions under which a contract is concluded.

Home renovations with a limited budget? Watch out for the quotes and the bills!

A homeowner who entrusts home renovations to an architect must clearly indicate if he wants a binding cost limit. Otherwise, the architect will only be liable for exceeding the cost estimate if the estimate was flawed or exceeded more than 10%.

Bona fides in negotiating: how disingenuous can one be?

Swiss law provides for a special basis of liability for conduct contrary to the rules of good faith in the context of pre-contractual negotiations. The more unreasonable the position adopted by a negotiating party, the more difficult it is for that party to successfully claim that the other party who broke off the negotiation is liable.

Contract management: the risks of not reacting to annotations made by the other party at the time of signing of the contract

Company found contractually liable for the act of an employee as a result of a handwritten statement made by the other party on the contract.

Liable for remaining silent: Broker found liable for failing to disclose relevant information which had an impact on the sale of his client’s apartment

A broker was held liable for breach of contractual obligations to his client by failing to disclose relevant information regarding the potential sale of his client’s apartment at a higher price.

Conflicting choice of forum clauses contained in a contract and its general terms and conditions: which clause prevails?

A choice of forum clause contained in the contract itself prevails over conflicting clauses contained in the parties’ general terms and conditions.

Buyer beware… of the goods description

Agreed qualities and good faith expectations of the Buyer in the sale of goods that can be used for multiple purposes.

Obligation of a contracting party to act against its own interests?

The general principle of good faith does not establish an ancillary obligation requiring the seller in a real estate transaction to act against his or her own interests or prevent the buyer from needing to pay tax on the sale.

Termination and set-off of a loan agreement: who, when and how?

Termination of a loan agreement and conditions of set-off in case of assignment of the claim.

Arbitration or state courts? The material limits of an arbitration clause that concerns the interpretation and application of a contract

Legal proceedings initiated in order to enforce a loan contract fell outside the (narrow) scope of an arbitration clause that was limited to the interpretation and application of the relevant agreement.