Facts
The facts of the case can be summarized as follows:- The plaintiff B., a Vietnamese national, had opened a bank account with the defendant Swiss Bank X. and had appointed his wife as his representative with sole signature authority.
- In the fall of 1975, B.'s two sons appeared at the bank and demanded the payout of the account funds, allegedly to prevent them from being confiscated by the new Vietnamese regime. Although the bank initially refused, it later transferred the account funds to the sons.
- In 1978, B. learned that his accounts had been closed and filed a lawsuit against the bank for reimbursement of the funds.
Considerations
The legal reasoning of the Federal Supreme Court can be summarized as follows:1. Swiss law is applicable to the management of affairs (Geschäftsführung ohne Auftrag) exercised by the plaintiff against his sons to recover the funds to be reimbursed by the bank. This results from the close connection of this management of affairs with the bank contract subject to Swiss law.
2. The bank cannot rely on clauses in its general terms and conditions that shift the risk of a non-discharging performance to a non-entitled party. Such clauses are analogously applicable to banks as holders of a licensed business under Art. 100 para. 2 CO. The judge must make an appropriate risk allocation between the bank and the customer in the individual case.
3. In the present…