Facts
In this case, the company X. Handels AG, domiciled in Switzerland, sued the company Z., headquartered in Geneva, for damages for improper performance of a mandate. X. Handels AG had purchased 2,000 metric tons of ethylene dichloride through its subsidiary X. Industries BV, but the delivered goods did not correspond to the contractual specifications. The Cantonal Court of Justice of Geneva ordered Z. to pay damages to X. Handels AG, considering that the identity of the contracting party was irrelevant to Z. at the time of the conclusion of the contract, in application of Art. 32 para. 2 in fine CO.Considerations
The Federal Tribunal dismissed Z.'s appeal and upheld the contested judgment. It ruled that Art. 32 para. 2 in fine CO applies even when the third party could not realize that the person with whom it was dealing wanted to conclude the transaction on behalf of another. The third party's indifference as to the identity of the contracting party is a question of fact that binds the Federal Tribunal, while the application of the concept of indifference is a question of law. For…