Facts
This case is about the liability of the guardian [B.] towards the company I. AG. [A.] was placed under guardianship in 1974 after being convicted of property offenses and forgery. Without the guardian's approval, [A.] continued to conduct independent business transactions, resulting in outstanding claims of the I. AG amounting to over 600,000 Swiss francs. The I. AG subsequently sued the guardian [B.] for damages.
The Federal Supreme Court first examines under which liability rules the claim is to be assessed. It concludes that the guardian's liability towards third parties is not to be assessed according to the provisions on guardianship liability, but according to the liability provisions of the Code of Obligations, in particular Art. 41 et seq. CO.
Considerations
Regarding the question of the unlawfulness of the defendant's conduct, the Federal Supreme Court states that unlawfulness by omission only exists if there is a guarantor position and the defendant has violated a resulting duty to act. The guardianship measures are primarily intended to protect the person of the ward and his or her assets. In addition, they also serve to protect certain third parties, in particular against property offenses.
However, the Federal Supreme Court makes it clear that the guardian is only required to take special precautions to prevent purely financial impairments of third parties if there are concrete and significant…