Facts
On March 9, 1957, Mrs. Huser entered into a "rental agreement" with Novelectric A.-G. in Zurich, for whom her then-fiancé and current husband Brunner acted as a representative, for a washing machine worth CHF 760. The contract included, among other things, clauses on monthly rent payments, liability for damages, and the notice period.
In the summer of 1957, Mrs. Brunner, without having made any installment payments, handed over the washing machine to her brother so that he could pledge it. Brunner assisted in loading the machine. It was then pledged to Stüssi for CHF 200.
The High Court of the Canton of Schaffhausen acquitted Mrs. Brunner-Huser and her husband of the charge of misappropriation or complicity. It saw the agreement of March 9, 1957, as a hire-purchase contract, the main purpose of which was the sale of the washing machine against payment in installments. However, the contractual relationship was to be subject to the regulations on rental in the meantime. Since the agreement was intended to circumvent mandatory provisions on the reservation of title, it was not legally protected under Art. 2(2) of the Swiss Civil Code (ZGB). Consequently, the washing machine had become the property of Mrs. Brunner and could therefore not have been misappropriated by her.
Considerations
The Court of Cassation came to a different conclusion
1. The agreement of March 9, 1957, is to be regarded as a hire-purchase contract. The main purpose is the sale of the item, with the transfer for use only being an ancillary service. In principle, such hire-purchase contracts are permissible, provided there is no circumvention of the law.
2. If the washing machine was actually only rented, its pledge by Mrs. Brunner would have been a misappropriation.
3. The lower court correctly determined that the agreement of March 9, 1957, was intended to circumvent Art. 715 of the Swiss Civil Code (ZGB), as Novelectric…