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Old 29.08.2012, 16:18
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What constitutes breach of contract?

In my moving contract, there is a clause that my buyers owe me a relatively small amount of money to compensate for mortgage cancellation charges (one or two may remember the thread). The money hasn't yet arrived ahead of the move tomorrow.

Does anybody KNOW (not guess) whether under Swiss Law, that would be reason enough to not handover the keys to the buyers? I recall from a similar incident some time ago that a lawyer advised me (I think) that under Swiss Law, non-delivery of a small condition of the contract is not enough to not complete, although of course the money can still be claimed legally after the event. Hopefully the money will arrive tomorrow morning - but I just want to know what my options are in case
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Old 29.08.2012, 16:35
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Re: What constitutes breach of contract?

forget the law and talk to them telling them to bring the small amount of money in cash tomorrow which you want before you hand over the keys.
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Old 29.08.2012, 16:39
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Re: What constitutes breach of contract?

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forget the law
Good advice, thanks.

You can close the thread now
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Old 29.08.2012, 16:41
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Re: What constitutes breach of contract?

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Good advice, thanks.

You can close the thread now
If you don't get a sensible answer on this thread, can't you take it up with the people that oversaw the contract? Presumably they would be able to offer advice?
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Old 29.08.2012, 17:18
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Re: What constitutes breach of contract?

Maybe worth a quick call to the Hauseigentümerverband for advice too?
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Old 29.08.2012, 17:24
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Re: What constitutes breach of contract?

Generally (and I really mean generally!), you can withhold your performance if the other side is not performing their part of the contract (Art. 82 CO). However, this only applies where the performances are dependent on each other.

Classic examples:
Sales contract: Delivery of goods against payment of price.
Employment contract: Work against salary.

Non-fullfilment of ancillary obligations will generally (and again I really mean generally!) not permit you to withhold performance unless the failure to perform this makes the main obligation useless.

An illustrative example:
The seller provides a car but fails to sign over the registration papers. Here the buyer might be able to withhold payment even though he receives the car, because he can't legally use it until the papers are signed over.
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Old 29.08.2012, 17:36
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Re: What constitutes breach of contract?

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Generally (and I really mean generally!), you can withhold your performance if the other side is not performing their part of the contract (Art. 82 CO). However, this only applies where the performances are dependent on each other.
Mica - thank you. So in my example, if the full settlement of the purchase price has been made and lodged with the bank, but the smaller ancillary payment has not been made directly to me (as stipulated in the contract), is that sufficient reason for me to withhold access to the house?
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Old 30.08.2012, 09:24
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Re: What constitutes breach of contract?

so now it is D-Day. any updates?
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Old 30.08.2012, 10:00
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Re: What constitutes breach of contract?

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so now it is D-Day. any updates?
How sweet that you care

Typical jiggery pokery - "Oh, the actual contractual handover date is 1 Sept and its great that you are allowing us to move in early, but the payment is set up for then!"

So I asked them to bring the receipt

What's behind all this - since you asked - is that the couple buying the house have never bought before, and are expecting a full clean, full handover protocol like a rented apartment. I have explained to them that I'm not going to do that, that it was bought "as seen" and that whilst I will clean it nicely, I'm not paying to to the full plughole, sunblinds, back, sack and crack cleaning job on it. They are a bit pissy about it and I SUSPECT that the agent has told them to not make that payment and withhold something if they are unhappy and then it will be my job to prove otherwise to get the money back. I may be wrong.

By the way - since I'm warming to my theme - it really gets up my hole the way some professions here play both sides of the argument and I suspect that as foreigners, we are played more.

In other words - in the buying of the new house we had our pants round our ankles repeatedly by our solitictors saying "Well,yes, but it isn't explicitly stated in the contract so there is a chance you won't win and have to pay costs, so I suggest you don't challenge". And then on the other side (like cleaning the house) - "Well, you're right, it doesn't say so in the contract, but it doesn't really need to as that just how we do things here"
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Old 30.08.2012, 16:05
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Re: What constitutes breach of contract?

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How sweet that you care

Typical jiggery pokery - "Oh, the actual contractual handover date is 1 Sept and its great that you are allowing us to move in early, but the payment is set up for then!"

So I asked them to bring the receipt

What's behind all this - since you asked - is that the couple buying the house have never bought before, and are expecting a full clean, full handover protocol like a rented apartment. I have explained to them that I'm not going to do that, that it was bought "as seen" and that whilst I will clean it nicely, I'm not paying to to the full plughole, sunblinds, back, sack and crack cleaning job on it. They are a bit pissy about it and I SUSPECT that the agent has told them to not make that payment and withhold something if they are unhappy and then it will be my job to prove otherwise to get the money back. I may be wrong.

By the way - since I'm warming to my theme - it really gets up my hole the way some professions here play both sides of the argument and I suspect that as foreigners, we are played more.

In other words - in the buying of the new house we had our pants round our ankles repeatedly by our solitictors saying "Well,yes, but it isn't explicitly stated in the contract so there is a chance you won't win and have to pay costs, so I suggest you don't challenge". And then on the other side (like cleaning the house) - "Well, you're right, it doesn't say so in the contract, but it doesn't really need to as that just how we do things here"
there's no way i would let them in early without them having made full payment. like i said, i would have told them to bring it in cash, or they can wait until 1 September. easy to tell them that moving in early was on the provision everything was paid.

make it easy for them: do you want to wait for payment to clear and move in on 1 sept, or pay in cash now and move in earlier? your choice.
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