The Bundesgerichtshof recalled that the legal provisions relating to the guarantee of a seller are not mandatory subject to exceptions that were not relevant in this case (i.e. they can be amended by contract). This means that the parties can effectively deviate from the legal provisions and (contractually) limit the buyer`s remedies to the right to enhance the goods in the event of a defect in the goods. In this case, the parties are bound by their agreement, so that the seller (debtor) is required to repair the defective goods and the buyer (creditor) cannot terminate the sales contract or ask for a reduction in the sale price (Article 205, paragraph 1, point). The buyer is required to assist the seller in fulfilling the seller`s duty to repair. Failure to comply with this obligation results in the buyer being delayed (Article 91 of the SCO, which settles the debtor`s delay) 29, which excludes the seller (the debtor of the obligation to repair the defective goods) may be late (there is no “debtor delay” under Section 102 SCO). Under these conditions and as long as the buyer`s delay persists, the buyer cannot assert his warranty rights against the seller. In this case, it was the unilateral denunciation of an exclusive distribution agreement for Switzerland and Austria in the medical device industry. The supplier allegedly announced the contract for a just reason and the exclusive distributor challenged the validity of such termination, which gave rise to litigation. In its judgment, the Bundesgerichtshof recalled that long-term contracts (z.B. exclusive distribution contracts) can be terminated immediately for reasons that are still unjustified and that there is a fair reason for termination where a contractor is no longer reasonable under the rules of good faith to continue the contractual relationship until the agreed term or until the next ordinary termination date. In this case, the Bundesgerichtshof upheld the cantonal judgment and found that the supplier had no right to terminate the contract with immediate effect, as there was no reason for a fair termination. The Bundesgerichtshof found that the fact that the exclusive distributor had breached its obligation to market products was irrelevant (this was not reflected in the cantonal judgment).
In addition, the exclusive distribution agreement expressly provided that the inability of the exclusive distribution to achieve the revenue objectives was an ordinary reason for terminating the contract (and therefore did not constitute a fair reason for immediate termination of the contract). The exclusive distributor had generally met contractual revenue targets for 2009 and 2010 (although the contractual target for Austria may not have been met in 2010). However, since the contracting parties (in Article 8.1 of the exclusive distribution agreement) had agreed on a mechanism for ordinary termination of the contract if the revenue objectives had not been met, this could not justify the immediate termination of the contract for a fair reason.38 The parties do not mutually agree exclusivity. Therefore, the introductor can cooperate with other brands, even with competitors of the brand, and the brand can work with other players [to confirm]. In this case, it was a shareholders` pact between the three founding shareholders of a Swiss limited company (regulated by Sco 620 and SCO). The agreement was concluded without limitation over time and declared non-resilient.15 The agreement provided for several shareholder obligations (including a right of each shareholder to be elected to the board of directors and a right of pre-emption).