Facts
This decision of the First Civil Court of the Swiss Federal Tribunal concerns the civil liability of a notary public in the Canton of Valais in the exercise of his duties as a public officer. The parties involved are Zufferey, the plaintiff, and Fournier, the defendant notary.
The central question is whether the liability of the Valaisian notary is governed by federal contract law (CO) or by cantonal public law. The Federal Tribunal must determine the applicable legal regime.
Considerations
According to established case law, the cantons have an obligation to ensure the security of transactions and the observance of the law in the creation, modification or extinction of certain legal relationships, either directly through their own bodies or through the intervention of persons specially designated for this purpose, such as notaries.
In the Canton of Valais, the notary, although not a civil servant within the meaning of the cantonal constitution, is considered a "public officer responsible for the receipt of authentic deeds". When he draws up an authentic deed, he therefore acts as a public employee within the meaning of Art. 61 para. 1 CO.
When the conditions for the application of Art. 61 para. 1 CO are…