Claim for Damages by the Entitled Party against the Mala Fide Possessor of a Stolen Item

Facts

M. G. had leased a Mercedes 300 CE from M.-B. C. AG, which was insured under a comprehensive insurance policy with A. Insurances. The vehicle was stolen on 25 October 1989 and sold the same day to R. H. After R. H. gained certain knowledge of the theft of the Mercedes on 2 November 1989, he later transferred the vehicle to P. D., to whom he had resold it. A. Insurances compensated M.-B. C. AG for the loss of the vehicle in the amount of CHF 77,624.50.

In a judgment dated 13/21 September 1993, the High Court of the Canton of Solothurn ordered R. H. to pay the insurance company the amount of CHF 65,000 plus interest at 5% from 21 February 1990. R. H. then filed an appeal.

Considerations

The Federal Supreme Court dismissed the appeal. It found that R. H. had possessed the vehicle in bad faith from 2 November 1989, when he had gained certain knowledge of the theft of the Mercedes. The possessory claim for damages of the entitled party against the mala fide possessor exists alongside the claim for restitution of the item and is of a quasi-accessory nature. The entitled party can assert the liability claims against any party obliged to return the item for the period during which that party possessed the item in bad faith.

The application of the liability-limiting provision of Art. 940 para. 3 of the Swiss Civil Code (ZGB),…