Facts
The U. Foundation (Plaintiff) sued A. (Defendant), its long-standing asset manager, for the disclosure of retrocessions and finder's fees that A. had received in the course of asset management. The lower courts had dismissed the claim, as they assumed that A. had been allowed to retain the income due to an implied agreement.
The facts: The U. Foundation was established in 1993 and was economically controlled by B. and his wife. A. managed the foundation's assets since its establishment until 1998 as an employee of various banks. From 1998 onwards, he continued the management on his own responsibility. In 2000, B. was arrested and convicted of asset offenses, whereupon insolvency proceedings were opened against his company "D. GmbH". A. then filed a suspicious activity report concerning the Plaintiff and was himself criminally prosecuted, but later acquitted.
Considerations
The Federal Supreme Court overturned the lower court's judgment and referred the case back to the lower court for supplementation of the findings and a new decision. It stated that the retrocessions and finder's fees received by A. in the course of asset management are generally subject to the duty of disclosure under Art. 400 para. 1 CO.
An agreement allowing the agent to retain the income must…