Facts
In 1974, M. as a courier of Bank A. misappropriated around 70 checks, which he handed over to two accomplices. Seven of these checks reached X. through intermediaries, and he cashed them at various banks in late 1974 and early 1975. On June 3, 1975, Bank A. debited X.'s account with 17,427 Swiss francs, which it had credited and paid him for one of the checks.
M. and his accomplices, as well as S., were criminally convicted. However, a criminal investigation against X. for receiving stolen goods was discontinued by the Public Prosecutor's Office of the Canton of Zurich on September 21, 1977.
On March 14, 1978, X. filed a claim with the Commercial Court of the Canton of Zurich, requesting that Bank A. be ordered to settle his account in a way that no debt of the plaintiff is recorded. The defendant opposed this request and filed a counterclaim for compensation of 273,010.54 Swiss francs plus interest for the damage it had suffered due to the checks cashed by X.
Considerations
The Federal Supreme Court upholds the judgment of the Commercial Court, which granted X.'s claim and dismissed Bank A.'s counterclaim.
According to the Federal Supreme Court, the one-year statute of limitations under Art. 60 para. 1 CO has expired, as Bank A. had become aware of the incidents at the latest in the spring of 1976.
Bank A. relies on Art. 60 para. 2 CO, according to which the longer criminal statute of limitations applies in the case of a criminal offense. However, the Federal Supreme Court finds that a criminal offense within the meaning of this provision does not exist, as the criminal investigation against X. for receiving stolen goods was discontinued because it could not be proven that he knew or should have known about the unlawful origin of the checks.
The…