Plaintiff's claim for reimbursement against the defendant due to unauthorized transfer

Facts

Linde AG (plaintiff), a German public limited company, instructed Deutsche Bank AG in 1990 to transfer commissions totaling DM 10,750,000 in three installments to Pablo Reimpell, Vice President of the Venezuelan company PDVSA. However, Deutsche Bank AG transferred the amounts of DM 2,250,000 and DM 500,000 not to Pablo Reimpell, but to the intervening party José Trinidad Marquez. The plaintiff then asserted a claim for reimbursement against the defendant (Swiss Bank Corporation) as the assignee of Deutsche Bank AG.

Considerations

The Federal Supreme Court set aside the judgment of the lower court and referred the dispute back to the lower court for supplementation of the facts and a new decision. It stated that any immorality of the underlying legal relationship between the plaintiff and Pablo Reimpell does not affect the coverage relationship between the plaintiff and the defendant. The defendant was therefore obliged to execute the transfer order in accordance with the instructions and cannot invoke Art. 66 CO to reject the plaintiff's contractual claim for reimbursement.

The Federal Supreme Court clarified that Art. 66 CO as a "general norm of denial of legal protection" does not exclude all claims based on immoral…