Kernrechtsfrage
Whether the CHF 100,000 option fee could be treated as a contractual penalty and reduced.
Extrahierter Entscheid
Yes. The payment could be subjected to the penalty rules, and its reduction was not barred by the fact that it had already been paid.
Extrahierte Begründung
The court held that a prior payment does not exclude reduction under Art. 163(3) OR if no knowing waiver of the reduction right can be inferred; the plaintiffs could not foresee the short-lived failure of the venture when they paid.