Reserves of ownership in the case of the sale of a stock of goods for resale by the buyer

Facts

The case concerns a sales contract between Robert Gautschi and Pfisterer AG, in which Pfisterer AG sold Gautschi 10,000 copies of a work subject to a reserve of ownership. The sale price was 132,000 Swiss francs, payable through a special account at the Cantonal Bank of Berne. Due to sales difficulties, Pfisterer AG took back the 9,400 unsold copies and demanded payment for the 734 copies sold. The dispute concerned the amount that Pfisterer AG could claim for the sold and taken-back copies.

The key facts are as follows: Pfisterer AG delivered 10,134 copies of the work to Gautschi between June and September 1959. Gautschi was only able to sell 734 copies at 44 Swiss francs each. Pfisterer AG took back the remaining 9,400 copies and demanded payment for the sold copies. The dispute concerned the amount that Pfisterer AG could claim for the sold and taken-back copies.

Considerations

The Federal Court examined the conditions under which Pfisterer AG could claim payment for the sold and taken-back copies. The court considered that the reserve of ownership had not disappeared for the sold copies, but that Pfisterer AG could only claim the agreed sale price, i.e. 13.20 Swiss francs per copy, and not the actual sale price of 44 Swiss francs.

The court also examined the issue of compensation for the deterioration of the thing taken back by the seller. The court considered that the value of the taken-back copies had decreased due to the insertion of advertisements for the Gautschi company,…