Facts
Ernst Wild granted a loan of CHF 400,000 at 5% per annum to the company Immo-Hyp Propria A.-G. in composition liquidation. However, the effective interest rate, including the conclusion commission, amounted to 38.15% per annum, thus exceeding the maximum rate permitted by Zurich cantonal law. After the borrower's bankruptcy, Wild claimed repayment of his loan, but the liquidators rejected his claim on the grounds that the contract was void due to usury. Wild then brought the matter before the court to assert his claim.Considerations
1. The Federal Tribunal considers that the exceeding of the maximum interest rate provided for by Zurich cantonal law renders the loan contract void under Art. 20 CO, regardless of the fact that only the borrower is subject to this legal prohibition. Indeed, the fact of charging usurious interest is objectively unlawful, even if the payment of such interest is not expressly prohibited to the borrower. Art. 73 para. 2 CO allows the cantons to enact provisions against abuses in the matter of interest, and these provisions have civil law effects.2. However, the nullity does not necessarily extend to the entire contract. In accordance with Art. 20 para. 2 CO, only the clause relating to the conclusion commission of CHF 10,000 is null, the rest of the loan contract remaining valid. The Federal Tribunal considers indeed that the loan and…