A forged signature makes a contract invalid

Judgment head


103 IV 149


44. Excerpt from the judgment of the Court of Cassation of August 18, 1977 i.S. B. against Justice Department of the Canton of Appenzell A.Rh.


Regeste


Art. 110 No. 5, 251 No. 1 StGB; Concept of the deed.

A formally invalid contract can be suitable to prove rights or obligations other than those to be established by this contract.


Considerations from page 150


From the considerations:


a) B. has forged a "sales contract" dated August 12, 1972 in two similar versions. G., owner of the house rented to B., would then sell it to the complainant for CHF 76,000. When the contract was concluded, the complainant would have made an advance payment of CHF 25,000.00 under this contract, combined with the obligation to pay an additional CHF 5,000.00 four times a year, for the first time on December 31, 1973. For the remainder of CHF 31,000 would be set up in a mortgage at 5% interest. If the buyer breaks the contract, he no longer has any claims to the payments made. The land register entry can only be made once payment has been made. If one of the parties does not fulfill this agreement of the three points, the Lutzenberg municipal court is responsible for clarification. The signature of the seller G. is, like the contract in general, forged.

B. showed one or the other fake copy of the contract to Ms. H. in order to make her feel safe and to make payments to him. In this, the cantonal courts saw the offense of forgery in accordance with Art. 251 No. 1 StGB.

b) Against this conviction, the complainant objects that everyone knows that the purchase or the mortgage encumbrance of a piece of property requires public notarization, that a contract concluded in simple written form is not legally valid and that, therefore, these contracts are not suitable for evidence either by law or by practice would have. The sales contracts are so fraught with spelling mistakes and so amateurish that one has to recognize at first glance that it cannot be a real sales contract.

c) A contract that is void due to non-compliance with the form required for its validity is not suitable for proving the rights and obligations agreed therein;

BGE 103 IV 149 p. 151

because these did not arise due to the invalidity of the contract. However, that does not mean that such contracts are simply unsuitable as evidence. If they are also unsuitable for proving the invalidly agreed rights and obligations in the contract, they may be suitable for proving otherwise facts of legal importance, such as the fact that the conversion of the contract in the context of another legal transaction still has effects in conformity with the will that the parties have otherwise made legally relevant declarations or facts have occurred that are otherwise relevant in legal transactions (damages, etc.) (HAEFLIGER, term of the document in Swiss criminal law, Basel 1952, p. 43, for the letters of intent, e.g. not publicly recorded Land purchase agreements; STRATENWERTH, BT II p. 464; also SCHÖNKE / SCHRÖDER, Commentary 18th edition, § 267 N. 9 regarding conversion; GOYET, Droit pénal spécial, 8th edition N. 188; ENCYCLOPEDIE DALLOZ, Droit pénal, "Faux en écriture "N. 68-77 especially N. 77; Novissimo digesto italiano vol. 7" Falsità in atti "N. 11:" Anche un atto invalido eppur esistente storicame nte come manifestazione di un pensiero incorporata in una scrittura può presentare un interest probatorio che è independente da conseguenze di natura tipica per le quali l'atto era stato formato o concepito ").
d) In the present case, the purchase contracts, assuming their authenticity, would not have been objectively suitable for establishing a claim to transfer ownership of the house to B. The form required by law was lacking for this purpose (Art. 257 ZGB, Art. 22 Para. 2, 216 OR). It is also believed that even a forged contract, which for formal reasons would be invalid if it were genuine, could be the subject of a document offense; because the formal error could be overlooked (as for French law GOYET, Droit pénal spécial, 8th edition, no. 188 with reference to Cass. May 18, 1960, Bulletin criminel de la Cour de cassation 272). But this question can remain open. Because the forged contracts also contained the receipt that the complainant had made a down payment of CHF 25,000 for the purchase of the property. That, too, would have been an asset and thus a security for Ms. H. in the event that she is from the complainant

BGE 103 IV 149 p. 152

should demand their loan back (see BGE 101 IV 278). In this respect, the writing was therefore a document.