Facts
The dispute opposes company X. AG, a brokerage firm, and Y., a self-employed craftsman. Company X. AG is involved in the mediation of futures transactions on commodities and the stock market. Y. was contacted by employees of company X. AG to invest in futures transactions. He signed an order confirmation for options on March 7, 1991, which provided for a commission of $300 US per option, without the term "contract" being clearly explained. Company X. AG carried out several transactions for Y.'s account without providing him with appropriate advice on the risks and costs associated with them. Y. suffered significant losses and brought an action against company X. AG for compensation.
The Commercial Court of the Canton of Zurich ordered company X. AG to pay Y. an amount of 108,479 Swiss francs, as well as interest. Company X. AG appealed this decision to the Federal Court, arguing that the Commercial Court had misinterpreted the company's general terms and conditions and that Y. had been informed of the risks and costs associated with the transactions.
Considerations
Interpretation of general terms and conditions
The Federal Court examined the interpretation of company X. AG's general terms and conditions, in particular the clause relating to the commission. It considered that the wording of the clause was ambiguous and that Y. could reasonably think that the commission would be $300 US per transaction, and not per contract. The Federal Court also considered that company X. AG had not provided sufficient evidence to demonstrate that Y. had received the general terms and conditions and had read them before signing the order confirmation.
Qualification of the contract
The Federal Court examined the qualification of the contract between Y. and company X. AG. It considered that the contract was an enterprise contract, with elements of mandate and commission, and that company X. AG had the obligation to advise and inform Y. about the risks and costs associated with the…