SWITZERLAND: Some judgements of the Federal Supreme Court on commercial agency and distribution agreements.

Patrick ROHN | SWITZERLAND | 2007-04-18

Patrick ROHN

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Federal Supreme Court Judgement 4C.2006/2005 of 28 September 2005


In its judgement, the Federal Supreme Court upheld a judgement at the previous instance regarding the termination without notice of an exclusive agency agreement by the manufacturer because the exclusive agent had defaulted on payment and had failed to meet the minimum purchasing obligations. The agent’s objection that he had not reached the agreed minimum volume because the manufacturer had not supplied him with more goods was opposed by the Federal Supreme Court on the grounds that the manufacturer had been entitled to refrain from executing the agent’s orders because of the default in payment.



Federal Supreme Court Judgement 4C.130/2004 of 18 June 2004


The Federal Supreme Court upheld the legal definition of the distribution agreement concluded by the parties as an innominate agreement and did not see any reason to apply Article 418g Para. 2 OR [Code of Obligations] (territory protection) mutatis mutandis in the case of an exclusive agency agreement:
‘No reasons are discernible for a mutatis mutandis application of this provision to the exclusive agency agreement and there does not appear to be any teaching. … If Article. 418g Para. 2 OR is not applicable, however, the plaintiff has no contractual claim to a certain commission for any transactions involving the defendant’s new machines entered into by third parties in the contractual territory.’



Federal Supreme Court Judgement 4C.191/2001 of 15 January 2002


The agent claimed commission of CHF 250,000.00. The agent claimed it had been assigned a particular territory. Consideration by the Commercial Court of whether the contractual provisions require interpretation. The answer is no. Assessment of the parties’ statements: The court decided that the parties had not attached any special importance to the territory in the ‘Mediating agent in the operating area of the Koblenz region’ and it decided that this agreement did not constitute the assignment of a particular territory for the purposes of Article 418f Para. 3 OR. The Federal Supreme Court was bound by these findings of facts. There could therefore be no review by the Federal Supreme Court.

In addition, the case also related to commission statements, which the agent had partly acknowledged, but adding two reservations for 1993 in January 1994, one with regard to the territory (the judgement rejected territory protection, as mentioned above) and another one with regard to EDP. The Federal Supreme Court describes the second reservation as unclear and insufficient
‘… if the plaintiff wished to reserve full control for itself, it should have clearly expressed this or not have signed the statement’.

When determining the amount of the claims for the years for which the statements were not acknowledged, the court used the average values for previous years as a basis. This constituted an assessment of evidence by the Commercial Court and was therefore not reviewed by the Federal Supreme Court.


André Thouvenin, IDI Country Expert for Switzerland.


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