Facts
The dispute concerns the transfer of risks in the context of a contract for the sale by successive deliveries of shares in a joint-stock company. The company went bankrupt before the contract had been fully executed. The defendant, who had remained in possession of all the shares, claimed payment of the outstanding balance of the purchase price from the buyer (the plaintiff). The latter filed an objection to the enforcement proceedings.Considerations
The Federal Tribunal upheld the judgment of the cantonal court, ordering the plaintiff to pay the outstanding balance of the purchase price. It considered that, despite the sale by successive deliveries, the general rule of "periculum est emptoris" (the risk is borne by the buyer) applied in this case. Indeed, the deferred deliveries had not been provided for in the interest of the seller, but in the interest of the buyers who did not have the necessary financial means to acquire all the shares at once. The Federal Tribunal therefore ruled that the plaintiff had to bear the risk of the company's bankruptcy, in accordance with the general rule.
The Court recalled that the rule of "periculum est emptoris" and its exceptions must be interpreted restrictively, taking into account the interests at stake…