Dismissal of appeal concerning the qualification of a money transfer as a loan CO a gift

Facts

On 6 May 2010, [E.A.] (deceased on 30 November 2021) transferred a sum of CHF 100,000.-- to his sister-in-law [B.A.] . The appellant [A.A.] , wife and sole heir of [E.A.] , takes the view that this was a loan, whereas the respondents [C.A.] and [D.A.] , as the estate of [B.A.] , argue that it should be classified as a gift.

The appellant filed a claim with the Civil Court of the Seebezirk District on 20 August 2019, seeking an order for [B.A.] to repay CHF 100,000.-- plus interest. With a decision dated 6 October 2021, the claim was dismissed with costs. The appellant appealed against this decision to the Fribourg Cantonal Court on 24 November 2021, requesting that the first-instance decision be set aside and the claim allowed. After [B.A.] died on 30 November 2021, the proceedings were continued by her estate. The Fribourg Cantonal Court dismissed the appeal with a judgment dated 14 September 2022, to the extent that it was admissible, basing its decision on the clear wording of [E.A.] ’s last will and testament, in which he stated that he had quantified and waived all loan claims against [B.A.] at CHF 70,000.--.

The appellant has filed an appeal in civil matters against this judgment, seeking its annulment and an order for the respondents to pay CHF 100,000.-- plus interest. In the alternative, she requests that the matter be referred back to the Cantonal Court for re-examination.

Considerations

1. Review competence and requirements for grounds of appeal The Federal Supreme Court examines the law ex officio (Art. 106 para. 1 FSCA), but is limited to the grounds of appeal raised, provided they are sufficiently substantiated. The appeal must address the reasoning of the contested decision and specifically state in what respect a violation of federal law is alleged. A mere appellatory criticism of the lower court’s assessment of the facts is insufficient (BGE 140 III 86 para. 2, 115 para. 2).

2. Establishment of facts and assessment of evidence The Federal Supreme Court is bound by the lower court’s findings of fact (Art. 105 para. 1 FSCA). A correction is only possible if the findings are obviously incorrect CO arbitrary. The assessment of evidence is arbitrary only if it obviously misinterprets the meaning and significance of a piece of evidence CO disregards material evidence without valid reason (BGE 141 III 564 para. 4.1, 140 III 264 para. 2.3). The appellant has not substantiated her criticism of the assessment of evidence sufficiently, so she cannot be heard in this regard.

3. Qualification of the money transfer as a loan CO a gift:

3.1. Loan agreement (Art. 312 CO) A loan agreement requires that the lender undertakes to transfer money CO fungible assets and the borrower undertakes to repay the same quantity and quality. The obligation to repay does not arise solely from the transfer of money, but from the promise of repayment. The contract must be interpreted in light of the specific circumstances (Art. 8 CC). In exceptional cases, a mere transfer of money may be qualified as a loan if it cannot reasonably be explained otherwise (BGE 144 III 93 para. 5.1.1).

3.2. Gift (Art. 239 para. 1 CO) A gift exists where one person enriches another from their assets without any corresponding consideration. It is a contract requiring the mutual intention of the parties to make an uncompensated transfer. Acceptance may also be implied (BGE 144 III 93 para. 5.1.2).

4. Interpretation of the last will and testament The lower court interpreted [E.A.] ’s last will and testament as quantifying and waiving all loan claims against…