Facts
In this case, C. and company X. concluded a leasing contract for the rental of a new Simca Horizon GL car, with an initial term of three years and then extended by two additional years. The financing was provided by bank Y. to whom C. had assigned his rights.
In 1983, C.'s agent wrote to bank Y. that the contract was null and void under the provisions on hire purchase (Art. 226a et seq. CO). C. then filed an action against bank Y. to have the contract declared null and void and to obtain reimbursement of the monthly payments made, undertaking to return the vehicle.
The cantonal court dismissed the claim, considering that even in the event of nullity of the contract, the action for repayment of the sums paid should be dismissed.
Considerations
The Federal Tribunal considers that when a leasing contract is executed in good faith by the parties, although it is null and void under the provisions on hire purchase, the theory of the de facto contract must be applied. Thus, the lessee must compensate the lessor for the use of the vehicle, but to a reasonable and lawful extent, independent…