Dismissal of the action for the repetition of the undue payment brought by the acceptor of bills of exchange against the endorsing bank

Facts

Hermann Kauffmann, a Swiss merchant, maintained business relations with the Comptoir des bois du Cher, a French limited liability company. In March 1961, the manager of this company, Serge Bailly, issued two bills of exchange payable to Banque Hervet SA, domiciled at the Banque cantonale bernoise in Porrentruy. Banque Hervet SA discounted these bills, but the wood was never delivered. At maturity, Kauffmann refused to pay, arguing that the bills had not been signed in accordance with the parties' agreement. Banque Hervet SA then sued Kauffmann, who eventually paid the amount due by depositing it with the bankruptcy judge. Kauffmann then brought an action for the repetition of the undue payment against the bank.

Considerations

1. The Swiss judge has jurisdiction to hear the action for the repetition of the undue payment, despite the French domicile of the defendant bank. Indeed, the action based on Art. 86 or 187 DEBA can be brought at the place of enforcement that provoked the disputed payment, even if the defendant is domiciled in France.

2. The payment made by Kauffmann by depositing the amount with the bankruptcy judge is equivalent to a payment to the debt collection office and releases the debtor. Kauffmann can therefore sequester the amount paid with a view to the repetition of the undue payment.

3. French law applies to the form of the commitments made in the matter of the bill of exchange, as the bills were drawn in France. Swiss law…