Refusal to return heat pumps shortly before the start of the heating period as coercion, but not as misappropriation

Facts

Based on a contract dated August 22, 1985, K. had supplied L. with a heat pump heating system. After the installed four heat pumps allegedly could not provide the intended heating capacity, L. requested the supplier company to inspect the system. K. removed the heat pumps in order to take measurements on the company's own test stand. On August 17, 1987, L. requested K. to reinstall the heat pumps within 10 days. On September 25, 1987, K. replied that a return of the heat pumps would only be considered if L. paid the outstanding installation costs of CHF 51,553.50. He demanded immediate payment of half of the claim and security for the other half plus CHF 5,000 through a full bank guarantee, and concluded with the following remarks: "We expect your decision by 5 p.m. on 29.9.1987. If you have decided on our proposal by then, our delivery time is approx. 20 days. Otherwise, we need 6 to 8 weeks." Subsequently, he did not return the heat pumps with a total value of around CHF 40,000.

Considerations

1. The refusal to return a movable item contrary to a contractual obligation does not constitute misappropriation within the meaning of Art. 143 of the Swiss Criminal Code. For such cases, there is also no need for criminal sanctions, as the civil law remedies are sufficient.

2. It must be examined whether the threat of serious disadvantages by K. is to be affirmed. K. threatened L. not to return the heat pumps as long as he did not pay the alleged outstanding claim. Since K. was obliged to return the heat pumps if he had no right of retention, the requirement of significant disadvantage must be affirmed, as the threat was made shortly before the start of the heating…