Facts
W. maintained a current account in Italian currency at the Bank X.-AG in Zurich. At the request of W., on December 18, 1981, X.-AG asked its correspondent bank in Milan by telex to transfer an amount of 19.4 million Lire to a numbered account at Bank Y. in Lugano by telex. Due to Italian foreign exchange regulations, which do not allow foreign currency transfers to anonymous accounts, the Italian correspondent bank withheld the amount and requested X.-AG and the bank in Lugano to provide the name and address of the beneficiary account holder. As the two banks did not comply with this request, the Italian authorities confiscated the amount. X.-AG then debited W.'s account with the amount of 19.4 million Lire. W. accused X.-AG of having breached its duty of care and demanded that the debit be reversed or that the corresponding amount be reimbursed to him in Swiss francs (Fr. 30,070.-).
Considerations
The Federal Supreme Court decided that X.-AG had not executed the transfer with due care and therefore could not derive any claim for reimbursement of its expenses pursuant to Art. 402 para. 1 CO. Since the loss is attributable to the own negligence of X.-AG, it cannot rely on Art. 402 para. 2 CO to shift the damage to W.
Furthermore, the Federal Supreme…