The Commercial Court of the Canton of Berne admitted part of the complaint of X. It qualified the contract as a sole agency contract based on the exclusivity granted in the contract.
The termination by Y was illegal because Y did not meet the delivery time, ignored the exclusivity agreement and was not able to make the devices suitable for the market.
The Federal Court confirmed its judgment (4C.225/2006 judgment of 20 September 2006, E. 2.4), according to which the injured party who claims loss of profit must demonstrate what net profit it would have obtained from the lost business transactions. The expenses that the injured party would normally have incurred on its own services but did not incur because the business never materialized, must therefore be deducted from the hypothetical turnover as hypothetical expenses.
The Federal Court thereby upheld the Commercial Court in Berne which, based on the testimony of the witnesses and when calculating the damages, argued that it was a question of a hypothetical sale and estimated the net margin based on an estimation of the saved costs for selling expenses and after-sale service. The Federal Court noted in the process that the Commercial Court should have estimated how many devices X could have sold during the term of the contract if Y had acted in conformity with the contract. The Court found that it could not fault the Commercial Court for not considering relevant what the parties thought was desirable since it was unclear whether the sales targets agreed upon by the parties could have been reached at all.
André Thouvenin, IDI Country Expert for Switzerland.
