Presumption of Purchase by the Commission Agent for Their Own Account

Facts

This decision concerns a dispute between X. (the claimant) and Bank Z. AG (the respondent) regarding the purchase of shares in company W. AG. The claimant alleges that he purchased these shares through company Y., acting as a commission agent. The respondent disputes this claim, arguing that the shares were purchased on the stock market. The cantonal courts placed the burden of proof on the claimant to establish that the shares came from the own stocks of company Y. However, the Federal Court ruled that this burden of proof lay with the respondent as the commission agent, in application of Arts. 436(1) and 437 CO, in combination with Art. 8 CC.

Considerations

According to Art. 8 CC, the burden of proof lies with the person who invokes a fact to derive a right from it. In the contract of commission, this general rule is supplemented by a legal presumption: when the commission agent tasked with purchasing securities with a stock exchange price has not received contrary instructions from the principal, they are authorized to deliver these securities themselves as the seller (Art. 436(1) CO).

When the commission agent indicates in the account that they have executed the order without designating a third party as the seller, they are presumed to have taken on the obligation of the seller (Art. 437 CO). This presumption is rebuttable, but the burden of proof to the contrary, i.e., that…