Facts
In August 1992, Roger Y. submitted a written application to X. AG for a liability, comprehensive, and accident insurance policy for a Mercedes-Cabriolet 500 SL. The Z. Insurance Company issued the corresponding policy in October 1992. Due to the theft of the insured car in April 1993, X. AG demanded the insurance sum. In July 1993, the Z. Insurance Company informed X. AG that it would refuse payment, as the application form had been incorrectly answered regarding the question about the most frequent driver. X. AG did not deny this, but argued that the insurance company's sales agent had stated that he would process the application faster if an older person was named as the most frequent driver instead of the then 24-year-old Roger Y.
In a judgment dated 22 September 1995, the Commercial Court of the Canton of Zurich ordered the Z. Insurance Company to compensate X. AG for the current value of the car in the amount of CHF 120,000.--.
Considerations
The Federal Supreme Court overturned the judgment of the Commercial Court and referred the dispute back to it for clarification of still open issues.
Pursuant to Art. 6 VVG, the insurer may declare withdrawal within four weeks of becoming aware of the breach of the duty to disclose if the person obliged to disclose has incorrectly communicated a material risk fact when concluding the insurance contract. On the back of the application form, the defendant referred to this provision and informed the plaintiff that it could "withdraw from the contract" in case of concealment of…