Facts
This decision concerns a dispute between C.X. (the claimant) and D.X. (the defendant) regarding the restitution of intermediated securities. The defendant had instructed the claimant to sell his registered shares, bearer shares, and equity interests at a nominal value five times higher. However, the claimant only sold the defendant's 1,833 registered shares, but at a nominal value ten times higher. Although this variant was more advantageous for the defendant, the claimant subsequently distributed the differential profit and the remaining bearer shares and equity interests between himself and his common brother.Considerations
The Federal Supreme Court held that the claimant, as an agent, was obliged to return the differential profit from the sale as well as the remaining 40 bearer shares and 1,075 equity interests, now qualified as intermediated securities. These assets were obtained by the claimant in the course of executing the mandate and are closely linked to it. The fact that the claimant subsequently transferred a portion of these assets to a third party is not relevant to his liability, as the obligation to restitute is a personal right directed against him in his capacity as an agent.
The Federal Supreme Court thus ruled that the claimant must transfer to the defendant the differential profit…