Reservation agreement

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The reservation agreement is a private, written preliminary contract for the conclusion of a main contract for the purchase of a property in Switzerland , usually combined with a down payment and the agreement of a contractual penalty , according to which the down payment is forfeited to the seller if the buyer does not sign the property purchase contract to be publicly notarized conclude.


The reservation agreement gives neither the property seller nor the property buyer an enforceable right to transfer ownership. However, it establishes a right of first refusal on the property in question.

Need for form

Where the law for the protection of the contracting parties prescribes a form for the validity of the future contract, this also applies to the preliminary contract (Art. 22 para. 2 OR ). The preliminary contract for the conclusion of a property purchase contract (main contract) therefore already requires public notarization in order to be valid (Art. 216 para. 2 OR). All of its objective and subjectively essential conditions must be known and the conditions which are condicio sine qua non for the parties should be taken into account.

In order to be valid, the property purchase agreement must be in accordance with Art. 657 ZGB , Art. 216 Para. 1 OR of the public notarization. It also has to contain the formulated objective and subjectively essential conditions as well as the conditions that are conditio sine qua non for the parties.

Broker behavior

Experience has shown that many brokers put prospective buyers under pressure to close with, in some cases, incorrect information (other buyers are ready for a deal, last property, etc.). The haste occurs which the legislature wanted to prevent with the public notarization. The draft of a property purchase contract is usually only presented to prospective buyers after the reservation payment has been made. Often the prospective buyers do not even have enough time to assess the property and to obtain the financing commitment from their bank.

The broker is concerned with his brokerage commission: By signing the reservation agreement by the prospective buyer, he provides his client with the proof of commission-based evidence of the placement of a buyer and by making the reservation payment, he also secures himself financially, before a client only rarely shelters him . The haste and the lack of a contract due to the lack of public certification can have various effects:

  1. Changed conditions:
    1. The prospective buyer has found a better property.
    2. The prospective buyer does not like the execution project for a property from plan (selection based on the preliminary project).
    3. The personal and / or financial circumstances of prospective buyers have changed so much that they no longer want or can no longer fulfill.
  2. Bank or real estate advisors advise against the prospective buyer to sign the property purchase agreement presented by the seller in this form.
  3. Reservation riding: The "seller / broker duo" use the property, at least initially, only to take as many down payments as possible; they deliberately submit a unilaterally unacceptable property purchase agreement to the prospective buyer; After unsuccessful contract negotiations, they withdraw from the reservation agreement and claim damages for the replacement sale from the prospective buyer (renewed agency costs, reduced price, etc.), which they offset against the reservation payment.

Rights in the event of non-performance

If the prospective buyer does not comply, the prospective seller only has the option of withdrawing from the contract due to the lack of an enforceable claim to transfer of ownership. He will sell the object of purchase to a new buyer to be evaluated and claim compensation for the replacement sale (renewed placement effort, reduced price, etc.). He will offset his damage with the reservation payment and repay any excess or claim any excess damage.

If the prospective seller does not comply, the prospective buyer will assert his additional expense for the search for a replacement property and a profit (which is difficult to prove or calculate). Due to the invalidity of the reservation agreement, one or the other party may have to resort to liability for pre-contractual breaches of duty ( culpa in contrahendo ).


  • Jürg Zulliger / Werner Egli: Immotipps , Überreuter, Vienna / Frankfurt 2000, p. 54 f.

Individual evidence

  1. a b c d
  2. Maja Baumann: Reservation Agreement: Reservation Agreement for Real Estate Business September 4, 2017
  3. Attention: Reservations-Reitsi website of the lawyers Bürgi / Nägeli, accessed on August 11, 2018