Facts
- [A.] (Plaintiff) holds a securities account with Bank [X. AG] (Defendant), which managed the assets based on asset management contracts. - The Plaintiff claimed that the Defendant was obliged to surrender to him the trailer commissions (trailer maintenance commissions) it had received from fund providers. - The Higher Court obliged the Defendant to surrender the trailer commissions it had received from third-party product providers, but not those from group companies.Considerations
- The Federal Court held that the duty to surrender under Art. 400 para. 1 CO not only covers assets that the agent directly receives from the principal, but also indirect benefits that accrue to him as a result of carrying out the mandate. - The decisive factor is whether the grant by a third party creates the risk that the agent may not sufficiently take into account the interests of the…