Facts
The general partnership Real Estate Agency H. Golay and P.E. Chapuis (hereinafter "the agency") was engaged in real estate management in Lausanne and managed several buildings belonging to the Zurich insurance company. On February 4, 1975, the agency entered into liquidation due to financial difficulties.
After being informed of the situation, Zurich agreed with the agency on a new system for collecting rents, with the opening of a dedicated postal account. However, in the meantime, the agency continued to collect the rents into its own postal account, without immediately remitting them to Zurich as planned. The amounts were then transferred to a bank account opened in the name of the agency in liquidation.
When the agency was declared bankrupt on April 1, 1975, Zurich claimed in the bankruptcy the sum of CHF 104,351.25 corresponding to the rents collected on its behalf. The bankruptcy administration contested this claim.
Considerations
The Federal Tribunal rejects Zurich's claim. It considers that the exception provided for in Art. 401 CO, which allows the principal to claim the claims or movable property acquired by the agent on its behalf, does not apply in this case. Indeed, the agency did not acquire claims against third parties on behalf of Zurich, but simply undertook to collect the rents into its own account.
Furthermore, the sums transferred to the bank account opened by the…