Facts
In May 1992, M. H. offered her VW Golf GTI for sale. R. B. then contacted M. H. and informed her that he had a buyer for the car. On May 12, 1992, M. H. handed over the VW Golf GTI to R. B. for resale to a third party. It was agreed that R. B. would either return the car within 48 hours or hand over the sales proceeds of CHF 22,500 to M. H.
On May 14, 1992, R. B. sold the car for CHF 19,000 to the used car dealer E. S., without passing on the proceeds to M. H. The police seized the car on the premises of E. S. on May 21, 1992, but returned it the next day. On May 23, 1992, E. S. sold the VW Golf GTI for CHF 20,500 to P. G.
M. H. filed a claim against P. G. and E. S. for the return of the car or compensation. In the course of the proceedings, the parties agreed that the value of the car was CHF 19,000 and that P. G. should return the car to M. H., while M. H. would deposit the amount of CHF 19,000 into a savings account.
Considerations
The Appellate Court of the Canton of Bern dismissed the claim, as it assumed that M. H. had entrusted the VW Golf GTI to R. B. for resale and that E. S. and P. G. had acquired the car in good faith.
The Federal Supreme Court confirmed this view. Although M. H. was deceived by R. B. regarding the underlying legal transaction, this was not the case with regard to the transfer of possession as such. Since M. H. had handed over the car to R. B. for resale, it was a case of entrusted property…