Facts
The defendant, Hans Kobel, operated a small farm in Affoltern and a mechanical engineering business. On 15 February 1960, he purchased nine woodworking machines from Robert Gautschi for 15,000 Swiss francs, but left them with Gautschi for a rental period. Kobel paid 4,000 Swiss francs as a down payment and received a receipt from Gautschi. The machines were sold with a rental agreement and a right of repurchase. On 1 March 1960, Gautschi's bankruptcy was declared and Kobel recovered the machines.
The bankruptcy estate of Gautschi brought a lawsuit against Kobel to recover the machines or obtain compensation. The cantonal court dismissed the claim, considering that Kobel had acted in good faith and that the purpose of the contract was actually the purchase of the machines and not the provision of a loan secured by a chattel mortgage.
Considerations
The Federal Court examined whether the cantonal court had violated Article 717 of the Swiss CC by considering that the parties did not intend to evade the rules on chattel mortgages. The Federal Court considered that the intention to evade the rules on chattel mortgages must exist with both parties, in particular with the purchaser.
The Federal Court also examined whether the circumstances allowed for the admission of the intention to evade, considering the following elements: the…