Facts
The case concerns the repayment of an erroneously paid sum of money. Notary X. was to pay out a sum of 277,003 fr. 15 to the heirs of A., of which 138,501 fr. 55 was to be paid to each of the two heirs, B. and C. Due to an error by the notary, C. received the entire sum. When the notary noticed the error, he demanded that C. repay the amount of 138,501 fr. 55, which C. refused.
The notary then brought a lawsuit before the Tribunal de première instance of the Canton of Geneva, which ordered C. to repay the amount. C. appealed, which was dismissed by the Cour de justice. C. then filed a complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court had to decide whether the simple refusal to repay an erroneously paid sum of money constitutes a "use" within the meaning of Art. 141bis SCC. The lower court had affirmed this and argued that C. had made a "use" of the sum of money to their advantage by refusing to repay it and relying on the statute of limitations.
However, the Federal Supreme Court did not follow this argument. It stated that the refusal to repay alone does not constitute a "use" within the meaning of Art. 141bis SCC, as this would contradict the principle of subsidiarity of criminal law. This principle states…