Facts
The geologist B. [Y.], who lived in South Africa, was involved in a diamond prospecting project on the southwest coast of South Africa together with C. M. In the summer of 1982, A. X., who lived in Switzerland and was under guardianship, contacted the two, following which a series of contracts related to the aforementioned project were concluded in South Africa. A. X. was then unable to fulfill the obligations she had entered into in South Africa.
After B. [Y.] learned that A. X. was under guardianship, he filed a claim for damages against her with the competent District Court on November 21, 1983, based on Art. 411 para. 2 of the Swiss Civil Code (ZGB).
In a preliminary judgment dated November 5, 1986, the District Court found that the defendant was liable for the damage forming the subject of the claim within the meaning of Art. 411 para. 2 ZGB. The appeal filed by the defendant against this was dismissed by the Cantonal High Court on June 5, 1987.
The defendant has appealed the High Court's preliminary judgment to the Federal Supreme Court, requesting that it be determined that she is not liable for the damage forming the subject of the claim and that the claim be dismissed in its entirety.
Considerations
The Federal Supreme Court concluded that the present facts should be assessed according to South African law. The lower court had affirmed the defendant's liability under Swiss law, in particular Art. 411 para. 2 ZGB. However, the Federal Supreme Court held that the focus of the contract negotiations was in South Africa and therefore South Africa is to be considered the place of action. Thus, South African law is applicable.
The Federal…