Lawyer's Right of Retention for Fee Claims from Estate Administration and Legal Services

Facts

The defendant, lawyer W. Müller, was the estate administrator of the deceased Karl Knie and subsequently managed a securities deposit belonging to the estate on behalf of the plaintiff, Mrs. A. Knie, until 1953. During this time, the defendant did not issue any invoice to the plaintiff for his efforts as estate administrator and lawyer. In 1955, the plaintiff filed a lawsuit for the return of the securities deposit, whereupon the defendant filed a counterclaim for remuneration of his services and requested the establishment of a right of retention over the deposit.

Considerations

The Federal Court decided:

1. Article 140 of the Swiss Code of Obligations (OR) applies to the right of retention under Articles 895 et seq. of the Swiss Civil Code (ZGB), so that the expiration of the limitation period does not prevent the creditor from asserting the right of retention.

2. The defendant, as the estate administrator, had non-independent possession of the disputed deposit and could therefore assert a right of retention over it. He…