Facts
On March 21, 1969, Feras Anstalt of Vaduz (the principal) entered into a fiduciary contract with Banca Vallugano SA of Lugano (the fiduciary), under which Feras deposited $50,000 into an account at the bank. These funds were to be lent, under predetermined conditions, "in the name of the bank, but at the exclusive risk and on behalf of the principal" to certain foreign entities or individuals. The interest was to be credited to the principal's account, while the bank was entitled to a commission on the loan amount.
In May 1971, the Civil Chamber of the Court of Appeal of the Canton of Ticino admitted Banca Vallugano to the benefit of a moratorium for the purpose of a composition agreement. The composition commissioner objected to the exclusion of the fiduciary accounts from the moratorium. Subsequently, the composition agreement with the abandonment of the assets was approved, and the claims of the holders of the fiduciary accounts were placed in the fifth class.
The holders of the fiduciary accounts have requested to exclude the disputed claims from the assets of the composition agreement and to order the bank to pay them the amounts of the loans made on their behalf, together with the accrued interest. They invoke Art. 401 of the Swiss Code of Obligations, arguing that the bank has acted in a relationship of indirect representation.
Considerations
The Federal Tribunal has held that the contracts in question fall within the scope of the mandate, as the bank had undertaken to conclude, in its own name but in the interest of the client, loan agreements with other banks active on the Eurodollar market. Therefore, Art. 401 of the Swiss Code of Obligations, which governs the transfer of claims acquired by the agent to the principal, applies.
The Tribunal has specified that Art. 401 of the Swiss Code of…