Powers of the Commercial Agent and the Authorized Representative

Facts

This decision concerns a dispute between a banking company (Haerry Bank) and the bankruptcy estate of the company Boutique Lido SA. The main question is whether the director of a commercial enterprise can invoke Art. 462 para. 2 CO (Swiss Code of Obligations) when he has tacitly granted a power of attorney (Art. 458 para. 1 CO) to a commercial agent.

Considerations

The Federal Tribunal considers that the will of the business owner to grant a commercial power of attorney can also be expressed tacitly, in accordance with Art. 458 para. 1 CO. Contrary to German law, which only knows the power of attorney granted expressly, Swiss law admits tacit power of attorney.

Although Art. 462 para. 2 CO provides that the representative without power of attorney cannot bind the business owner through bills of exchange, loans or lawsuits except with express authorization, the Federal Tribunal considers that this provision cannot be interpreted too restrictively. When the circumstances, assessed according to the rules of the theory of trust, allow the conclusion of a tacit granting of a commercial power of attorney, the business owner cannot invoke Art. 462 para. 2 CO to avoid the commitments made by his representative.

The Federal Tribunal considers indeed that the interest of the representative not to be held personally liable on the basis of an excess of his powers of representation, as well as the interest of third…