Restitution of undisclosed commissions received by the agent

Facts

The Transport Association Z., a Swiss non-profit association, entrusted the mandate to organize and administer a TIR carnet insurance system to A. AG, and then to X. Schweiz AG (which became E. (Switzerland) SA). The agents received undisclosed commissions from the insurers B. Insurance Company SA and D. Ltd, without informing Z. In 2005, Z. terminated the contract and initiated an action for restitution of the commissions against E. (Switzerland) SA.

Considerations

The Federal Tribunal partially upheld the appeal of E. (Switzerland) SA. It considered that the commissions do not constitute periodic benefits subject to a 5-year prescription period, but are subject to the ordinary 10-year prescription period under Art. 127 CO. The prescription period starts from the moment the agent received each commission, and not at the end of the mandate.

However, the Federal Tribunal found that some restitution claims were time-barred, as Z.'s debt collection requests only interrupted the prescription for commissions…