61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

securities described above. 104 Here too, there was continuity in private law
which was broken only temporarily with the Registration Decree of
20 December 1962. In this sense, 1946 and 1962 are key moments in the
private-law debate about National Socialism.
Prior to the entry into force of the Registration Decree (1 September 1963), the
legal treatment of «unclaimed assets» was governed by the ordinary provisions
of the Civil Code and the Code of Obligations (Obligationenrecht, OR). As a result
of the Registration Decree, these rules were suspended, albeit temporarily: after
the expiry of the Decree’s ten-year term, the normal principles of Swiss private
law applied once again. The following paragraphs highlight some of the fundamental
problems which arise when evaluating the legal status of «unclaimed
assets»: 105
• Even today, the legal status of the agreements concluded in the 1930s and
1940s to open accounts with Swiss banks or fiduciaries is problematical.
Assuming that at the time, foreign clients were primarily interested in a safe
deposit for their money rather than a return on their investment, the circumstances
surrounding these deposits – often known as «flight funds» –
suggest that they were accepted as a depositum irregulare (Article 481 OR),
combined with a generally implicit mandate to undertake the usual administrative
actions. 106
• On principle, claims for the return of deposited assets, including «unclaimed
assets», are subject to prescription. Under Swiss law, the time limitation for
their return is ten years; claims for interest payments expire after five years
(Articles 127 and 128 (1) OR). The question which arises in this context is
whether the time limitation begins with the deposit of the funds, or only
from the end of the contract – either on expiry of the agreed term or as a result
of termination of the contract. Since 1965, the Federal Supreme Court has
assumed that the time limitation does not begin until the contract ends. In
accordance with legal practice until the 1965 judgement, however, the time
limitation was suspended if it was impossible for the plaintiff to assert his
claim before the Swiss courts (Article 134 (6) OR). Some legal theorists go
further and demand that in general, at least with regard to the «unclaimed
assets» of Holocaust victims, the «time limitation» argument should not be
a valid defence. 107
• Afurther aspect, closely linked with the issue of time limitation, is the obligation
to hold files. Under Article 962 OR, all persons and companies which
are required to keep accounts are obliged to safekeep documents for ten years.
The question whether the ten-year time limitation also applies to files relating
to «unclaimed assets» was not debated until recently, however. In legal
theory, some authors argue that at the very least, files relating to the open-
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