Facts
In this case, it involved the sale of a property, where the guardian of the ward Ehrentreich was promised a "compensation" of 100,000 Swiss francs by the buyer Hasler to bind him to the transaction. The Federal Court decided that this promise violated good morals and was therefore void.
Hasler and Spirig, the buyers, transferred the purchase rights to the architects Bernhard and Eugen Gerwer, who undertook to pay them "surcharges" totaling 305,000 Swiss francs. Of this, 55,000 Swiss francs were to go to the guardian Zuppinger. The Gerwer brothers paid these 55,000 Swiss francs to Zuppinger, who kept the amount for himself.
In the subsequent accounting process between Hasler/Spirig and the Gerwer brothers, the plaintiffs claimed that the payment of 55,000 Swiss francs to Zuppinger was unlawful and immoral. However, the Federal Court rejected this argument.
Considerations
The Federal Court stated that the promise of 100,000 Swiss francs to the guardian Zuppinger violated good morals, as Hasler wanted to prevent Zuppinger from examining other purchase offers and giving preference to the plaintiffs' offer. Even though Zuppinger did not accept the promise with the intention of violating the ward's interests, and Hasler did not intend to promote the ward's detriment, the promise was void due to the violation of good morals under Art. 20 para. 1 of the Swiss Code of Obligations.
However, an obligation that violates good morals cannot be entirely devoid of effect. Since the Gerwer brothers paid the 55,000 Swiss…