Prescription of the civil action for disloyal management and breach of trust

Facts

On 17 December 1974, the 1st Civil Court of the Federal Tribunal handed down a judgment in the case of Sierro and others against Follonier. The facts are as follows: in 1953, Arthur Sierro, Cyrille Bourdin, Edouard Mayoraz, Louis Tournier and Marcel Dayer, as well as Jean Follonier, formed a simple partnership. They entrusted the latter with accounting. The partnership was dissolved in April 1956.

On 26 March 1956, all the partners except Dayer had joined Edouard Rudaz to found the public limited company Entreprise générale SA, in Hérémence, contributing the operating equipment of the simple partnership, except for Dayer's share. On 6 April 1956, the partners instructed the fiduciary company Lemano SA to control and update the accounts, as Follonier had not kept a clear and accurate accounting of the partnership.

On 9 October 1959, Sierro, Bourdin, Mayoraz and Tournier filed a criminal complaint against Follonier for disloyal management, declaring that they were also constituting themselves as civil parties. They later also invoked breach of trust. On 15 February 1961, the investigating judge of Hérens-Conthey decided to open a criminal investigation against Follonier.

On 20 October 1965, the investigating judge handed down a decision of no case to answer, considering that the absolute prescription of the criminal action had occurred seven and a half years after April 1956. The decision reserved the rights of the civil parties. An appeal filed by them was declared inadmissible on 16 February 1966.

On 2 June 1967, Sierro, Bourdin, Mayoraz and Tournier summoned Follonier to a conciliation hearing. By a memorandum of 14 September 1967, they concluded that the consortium's accounts should be established, Follonier having to pay each of the claimants their share of the operating and liquidation profit, the share to be determined by expert opinion.

Considerations

The Federal Tribunal examined the question of the prescription of the civil action for disloyal management and breach of trust. It considered that the claim invoked by the claimants is of a tortious nature and is subject to the prescription of art. 60 CO.

The Federal Tribunal also examined the question…