Facts
S. was employed by O. as an employee from May 1, 1993. According to the employment contract dated March 5, 1993, the parties agreed that in addition to a fixed monthly salary of CHF 4,500, S. would also receive a 50% share of the net profit. S. was paid a monthly advance payment of CHF 1,000 as profit participation. However, an annual settlement of the profit share did not take place.
In November 1995, the employment relationship was terminated. O. then demanded the reimbursement of the profit participation paid to S. in the amount of a total of CHF 30,200, as no profit had ever resulted from his business.
Considerations
The Federal Supreme Court concluded that the plaintiff's claim for reimbursement of the overpaid advance payments was based on the contract, not on unjust enrichment. The parties had expressly agreed on advance payments and an obligation to settle accounts, from which it must be concluded in good faith that the defendant is obliged to reimburse the overpaid advance payments.
The Federal Supreme Court rejected the defendant's argument that an obligation to repay in…