Facts
Jacobo Alejandro Gorali maintains a securities deposit and a current account at the Zurich branch of Lloyds Bank International Ltd. On May 23, 1979, the bank received a telex message from Frankfurt requesting that it observe a payment order given in writing. On May 28, 1979, the bank received a letter dated May 23, 1979 in Frankfurt, signed by J. A. Gorali, instructing it to credit a enclosed check for US $ 545,500 to Gorali's "at call" account and to transfer partial amounts to other accounts. The bank carried out the payments, but later found that the written order and the check were forged and that the telex message had not been initiated by Gorali. The credit to Gorali's account was then cancelled, but the US $ 145,000 that had been paid to Dresdner Bank and forwarded to a Portuguese bank in Lisbon had already been withdrawn.
Gorali filed a lawsuit against Lloyds Bank to have the credits and debits made, as well as the resulting interest, commission and expense charges, cancelled with value date. The Commercial Court of the Canton of Zurich dismissed the claim. An appeal filed by the plaintiff was dismissed by the Court of Cassation of the Canton of Zurich, insofar as it entered into it. The Federal Court partially upheld the plaintiff's appeal against the judgment of the Commercial Court and remanded the case to the lower court for reconsideration.
Considerations
The Federal Court states that the disputed payment of US $ 145,000, although not made on the customer's instructions, nevertheless had its basis in the legal relationship the customer had entered into with the bank. Therefore, the provisions on management without a mandate do not apply, but rather the contractual relationship between the parties must be taken into account.
According to the General Terms and Conditions, the customer must bear the consequences of forgeries, unless the bank is guilty of gross negligence. The Federal Court considers this a permissible contractual…