Facts
X., born on November 1, 1930, and Z., born on August 30, 1941, had a relationship as a couple from 1988 to 2000. On January 15, 1999, Z. moved in with X. in Rolle, 15 days before taking early retirement on February 1, 1999. It is established that X. transferred to Z., through a notary, an amount of 2,222,000 FF on June 25 and August 25, 1997, so that she could purchase a villa in Mougins.
X. subsequently demanded that Z. repay this amount, alleging that it was a loan. Z. argued that this payment constituted a donation to compensate for the loss of her pension due to her early retirement. The parties therefore disagree on the legal cause of this transfer.
Considerations
The Federal Tribunal examined the question of whether it was a loan (Art. 312 CO) or a donation (Art. 239 para. 1 CO), by applying the principles of interpretation of the parties' intention (Art. 18 para. 1 CO and the principle of trust).
When the parties have not reached an agreement on their actual intention (tatsächlicher Konsens), the judge must determine their objective intention according to the principle of trust (rechtlicher Konsens). This means that the obligation of one of the parties may arise from its behavior, from which the other party could, in good faith, deduce an intention to commit, even if this does not correspond to its intimate will.
In this case, the…