Non-Compete Enforcement with Indemnity Agreement

The court reviewed an appeal concerning the granting of an interim injunction for the real fulfillment of a post-employment non-compete clause under Art. 340b Abs. 3 OR, after an employee resigned and immediately took up a competing role, having secured an agreement with the new employer to cover all potential penalty payments and costs from the former employer. The court reasoned that while real fulfillment generally requires jeopardy to significant employer interests and particularly disloyal conduct by the employee, the employee's conduct—specifically pre-arranging complete financial indemnity against the penalty clause and enforcement—demonstrated a complete lack of willingness to adhere to the agreement, qualifying as sufficiently disloyal behavior. Furthermore, because the employee was guaranteed continued employment at the same terms for several years following the restriction period, the interim injunction would not impose significant hardship on the employee, thus lowering the threshold for demonstrating the employer's threatened harm, which was credibly shown to exceed the contractual penalty.