Case Law
- Agency
- Agency agreement
- Ancillary obligations
- Arbitration
- Brokerage contract
- Contract management
- Cooperation agreement
- De facto contract
- Distribution agreement
- Employment contract
- Forum clause
- Freight forwarder contract
- Innominate contracts
- Insurance agreement
- IT contract
- Joint venture
- Licensing agreement
- Loan agreement
- M&A agreement
- Pre-contractual negotiations
- Real estate sale agreement
- Representation
- Sale of goods
- Sale of immovable property
- Self-contracting
- Service Level Agreement (SLA)
- Software development agreement
- Sponsorship agreement
- Subsequent impossibility
Brokerage contract
Are broker fees on a real estate transaction conditional on a minimum sale price?
A contract for the renovation and sale of a property by an architect stated that the sale price “could” fall within a specified range. This clause, when properly interpreted, did not make the architect’s entitlement to fees contingent on achieving a minimum sale price.
Insurance agreement
Cyberinsurance Coverage for Ransomware Payments vs US Sanctions Regulations
An insurance company did not have the right to refuse to pay its insured client, a victim of a cyberattack who had made a ransomware payment, even if it claimed that its obligation to reimburse the ransomware payment would expose it to US sanctions.
Employment contract
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.
IT contract, Licensing agreement, Software development agreement
Early Termination of a Software Development Agreement: Which Provisions in the General Terms & Conditions of the IT Provider shall be deemed “Unusual” (and thus Unenforceable) and Which Rights related to the Custom Software shall the Client have following Termination?
Two provisions contained in the General Terms & Conditions of a B2B software development agreement were deemed “unusual” (“insolite”) and therefore unenforceable against the corporate client of an IT provider.
Agency agreement, Innominate contracts
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.
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.
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.
Agency
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.
Freight forwarder contract
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.
Brokerage contract, M&A agreement
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.
Distribution agreement
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.
Agency, Representation
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.
IT contract, Service Level Agreement (SLA)
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.
De facto contract, Self-contracting
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.
Sale of goods
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.
Agency
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%.
Pre-contractual negotiations
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.
Agency, Contract management
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.
Brokerage 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.
Cooperation agreement, Forum clause
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.
Sale of goods
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.
Ancillary obligations, Real estate sale agreement
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.
Loan agreement
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, Loan agreement
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.