Facts
On 25/26 October 1991, C. organized the "1st International Swatch Auction" in Lucerne, during which a Swatch "OIGOL ORO" watch by the artist Mimmo Paladino was to be auctioned. This watch was described in the catalogue as "brand new". M. won this watch at auction for the price of CHF 38,000.- plus a commission fee of CHF 3,800.-. Approximately six months later, an examination revealed that the watch was not brand new and that its value was only a fraction of that of a new watch. M. then filed a lawsuit against C. to obtain a refund of the amount paid.Considerations
The FSCA ruled that C. had not committed intentional fraud within the meaning of Art. 28 CO. Although the description of the watch as "brand new" proved to be inaccurate, C. had relied on the information provided by the supplier and had not deliberately misled M. Furthermore, the auction terms and conditions expressly excluded any warranty on the condition of the items offered for sale, except in the case of intentional deception. Thus, C. validly excluded its liability for the defect in quality claimed by M.
The FSCA considered that the descriptions in the auction catalogues are primarily intended to present the items for sale and to help interested parties decide up to…