Facts
Louis Lebar purchased 100 shares of the company Atlas Kassenfabrik AG and deposited them with Therese Vogt for safekeeping. In January 1976, Ms. Vogt credited Mr. Lebar with an amount corresponding to 33 shares, but the other 67 shares were not returned. In April 1979, Mr. Lebar requested information from Ms. Vogt about the fate of these 67 shares. In December 1979, he filed a claim for damages against Ms. Vogt in the amount of 26,800 francs, corresponding to the purchase price of the 67 shares. In May 1980, the company Atlas Kassenfabrik AG went bankrupt.
The District Court of Lenzburg granted Mr. Lebar's claim on April 29, 1982, calculating the damages based on the value of the shares in May 1976, which was 50,384 francs. The Cantonal Court of Aargau confirmed this judgment on December 3, 1982. Ms. Vogt then appealed the judgment to the FSCA.
Considerations
The FSCA partially upheld the appeal and remanded the case to the cantonal instance for a new judgment. It considered that the decisive moment for the calculation of damages is not when the return became impossible (May 1976), but when the deposit was claimed by the depositor (April 1979). Indeed, the loss in value of the shares between May 1976 and April 1979 did not result from the breach of contract, but would have occurred even if…