Facts
In autumn 1985, negotiations took place between company H. AG and Werner R. concerning the purchase, refurbishment and resale of a helicopter damaged in an accident. R. intended to find a buyer for the helicopter and had secured an option right for which H. AG demanded payment of 100,000 DM. Not having the means to pay this amount, R. approached Michael S., who in turn asked his friend Ruth L. to temporarily lend him the sum to transfer to R. Mrs. L. agreed and transferred 100,000 DM to H. AG on November 18, 1985. On November 3, 1988, Ruth L. filed an action against H. AG before the Commercial Court of the Canton of Bern for the reimbursement of 100,000 DM plus interest. The Commercial Court granted the claim up to 83,353.30 CHF plus 5% interest from January 1, 1988, on the grounds that H. AG had contractually agreed to refund the 100,000 DM to R. in the event of failed sales efforts, and that Mrs. L. could assert a claim for unjust enrichment for the amount claimed, converted into Swiss francs. H. AG appealed against this judgment, which was upheld by the Federal Tribunal.Considerations
The Federal Tribunal considers that, according to the findings of the Commercial Court, none of the parties to the proceedings had the intention of entering into a contractual relationship with the other. Therefore, no contract, even an irregular deposit contract within the meaning of Art. 481 CO, was concluded, as this also requires an agreement of will between the parties.
The Federal Tribunal considers that the situation should be judged in the same way as a referral relationship. As in such a relationship, there was here a single movement of assets - the transfer of money to H. AG - which simultaneously produced two or three performances. One between R. and H. AG, the other between Mrs. L. and R. or S. The transfer…