Facts
The Swiss citizen Philippin, residing in the canton of Nidwalden, visited the casino in Evian in the fall of 1963. After losing a larger sum of money, he had the casino administration provide him with casino chips (jetons) on credit in several installments, totaling around 60,000 NF. After the end of the game, he retained the value of the remaining chips, approximately 7,000 NF, and handed the casino cashier a check drawn on the Nidwalden Cantonal Bank for the total advances of 55,000 Swiss francs, although he was determined not to repay the loans. Consequently, a criminal complaint for fraud was filed against Philippin.
On July 14, 1966, the High Court of the Canton of Nidwalden convicted Philippin of fraud (Art. 148 para. 1 of the Swiss Criminal Code). The convicted person argued in the nullity appeal, among other things, that the casino had not fraudulently misled and thus could not have been defrauded based on Art. 513 of the Swiss Code of Obligations.
Considerations
According to Art. 513 of the Swiss Code of Obligations, no enforceable claim arises from a game, nor from loans and advances knowingly given and used for the purpose of gambling. The promise of performance merely constitutes an imperfect obligation with the effect that the debt obligation can be validly fulfilled by the debtor's voluntary payment, but the creditor's right to performance is not enforceable (Art. 514 of the Swiss Code of Obligations).
The civil unenforceability of gambling claims does not exclude fraud in gambling transactions, contrary to the appellant's view. The player who, with the intention of unlawfully enriching himself, induces the casino to grant advances by feigning his willingness to pay is punished under Art. 148 of the Swiss Criminal Code because he has obtained the performance to which he has no claim by the unlawful means of fraudulent deception. The casino is nevertheless fraudulently misled in that it is led to believe that the player is willing to voluntarily provide the consideration despite the unenforceability of the claim, and it is harmed because, without receiving the consideration, it has made the advance in reliance on the feigned promise of repayment.
Fraud exists in such a case regardless of whether the lender can civilly enforce the repayment of the loan. Art. 513 of the Swiss Code of Obligations only allows the gambling debtor to raise the defense of unenforceability against the claim from the gambling transaction, but does not entitle him to…