Facts
On April 29, 1988, F., the managing director and future delegate of the board of directors of company X. AG, opened a current account with bank Y. under the name "Company X. Data Systems F.". F. had checks from customers of company X. AG credited to this account and used it to pay private invoices and make cash withdrawals. Company X. AG only discovered F.'s fraudulent activities in early September 1990.
Company X. AG sued bank Y. for breach of duty of care. The Commercial Court of the Canton of Aargau partially upheld the claim and ordered bank Y. to pay the plaintiff an amount of CHF 27,631.30 plus interest at 8 3/4% since March 31, 1990.
Both the plaintiff and the defendant appealed against the commercial court's judgment. The Federal Supreme Court partially upheld both appeals and referred the dispute back to the lower court for supplementation of the facts and a new decision.
Considerations
According to Art. 1112 of the Swiss Code of Obligations (OR), the acquirer of a check that has "somehow gone missing" is only obliged to return it if he acquired it in bad faith or with gross negligence.
The bank that accepts a check in bad faith or with gross negligence from an unauthorized person must return it to the authorized person and is also liable for damages to that person. When accepting checks, the bank is generally only required to examine whether the check has been properly endorsed. Further investigations are only required if there are special grounds for suspicion that should have been apparent to any diligent banker.
The decisive factor is whether the bank knew or should have known, through proper…