Facts
On 11 June 1956, Y sold the property A to Z. On 12 June 1956, Notary X authenticated a sales contract according to which Z sold the property B to Y for 170,000 francs. This contract inaccurately indicated the mortgages encumbering property B. As the contract could not be registered in the land register, property B fell into the bankruptcy estate of Z, which was opened on 6 October 1956. Y suffered a loss of 34,000 francs (40,000 francs less 6,000 francs of dividend).
Y brought an action for damages of 20,000 francs against Notary X, alleging that the latter had committed a fault by inaccurately indicating the mortgages in the authentic deed.
Considerations
The Federal Tribunal considers that the liability of the notary does not fall under the provisions on mandate (art. 398 CO), but under art. 41 et seq. CO, in accordance with art. 61 CO. Indeed, the notary, even if he practises his profession independently, is considered a public agent within the meaning of art. 61 CO.
The Federal Tribunal finds that the notary has violated obligations arising from the federal concept of the authentic form, by inaccurately indicating the mortgages and omitting to mention the seller's obligation to modify these mortgages before the transfer of ownership. This conduct of the notary is therefore considered unlawful and faulty.
However, the Federal…