Facts
A. SA (the plaintiff) had been in a business relationship with B. S.A.M. (the defendant) since 1985. Upon the withdrawal of the banking license of A. SA in 1989, it had investments with B. S.A.M. totaling DM 2'998'627.29, FF 5'847'000.-, GBP 1'862'635.- and USD 9'381'828.73, while its own obligations towards B. S.A.M. amounted to GBP 758'580.70 and USD 11'739'111.11. A. SA contested the right of set-off of B. S.A.M., claiming that its investments were fiduciary investments on behalf of its clients, with the exception of two investments. B. S.A.M. contested the fiduciary nature of the investments. The Commercial Court upheld the right of set-off of B. S.A.M. for most of the investments, considering that the documents provided to B. S.A.M. did not contain clear indications of the fiduciary nature of the investments and that A. SA had expressly confirmed that B. S.A.M.'s investments were secured by its own investments.Considerations
According to the case law of the Federal Supreme Court, Art. 401 CO also applies to fiduciary relationships. When the fiduciant has fulfilled its obligations towards the fiduciary, the latter's claims against third parties are transferred to it. However, the right of set-off of the third party can be opposed to it, including for claims not related to the fiduciary investment, provided that the third party is in good faith and was not aware of the fiduciary nature of the investment.
The Federal Supreme Court has accepted the…