Valais – Sentenced for abusive prosecution

Posted12 avril 2022, 07:24

A trader was dismissed by the Federal Court. He had contested the illicit nature of his order to pay.

A company had been asked for 50,000 francs in “damages and interest”.

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A Valaisan who in 2014 sent a command to pay 50,000 francs to a supplier to encourage him to review his prices, has just been dismissed by the Federal Court (TF). The merchant challenged his conviction for attempted coercion, claiming to be the subject of an arbitrary decision. But the TF had the same reading of the facts as the Valais justice: if it is lawful to sue a company for an amount actually due, using it as a means of pressure is “clearly abusive”.

However, the Appellant did not hide the fact that his approach was aimed in particular at discussing invoices that he was contesting and that the reason for his lawsuit – “damages and interest” – was intended to make the recipient react. The TF judges that, “for a person of average sensitivity, being the subject of an order to pay a large sum of money is, like a criminal complaint, a source of torment and burden psychological”. He also came to the conclusion that the Appellant acted deliberately and consciously.

“An act of coercion”

The trader tried to argue that it was his company that had acted, towards another company, and that it was therefore only a step taken in the context of a commercial relationship. He felt that one might not retain the feeling of honor or social consideration, when it comes to a company. But the TF pointed out that this order to pay unjustified, which is moreover a very high amount, was likely to damage the professional credit of the supplier and to harm the commercial relations of the target company, making it appear indebted. In their considerations, the judges also severely rebuke the Appellant, who “diverted the institution of the order to pay from its legitimate aim, since the claim thus claimed was devoid of foundation, and used it as an abusive means of pressure, realizing an act of coercion within the meaning of art. 181 CP”.

The dispute between the trader and his supplier arose quite soon following the start of their business relationship. Having noted a price increase of around 28%, the Valaisan no longer paid for deliveries. Six invoices, for a total of 29,894 fr. 64, thus remained outstanding. The supplier sent reminders and summons, before traveling to Valais to claim his due. On this occasion, according to the Appellant, the visitor was insulting. Five days later, the litigious order to pay was sent. The TF calculated that the over-invoicing invoked, namely 28% of the six unpaid invoices, corresponded to 8,370 fr. 50. “From this angle also, the claimed amount of 50,000 francs – that is to say almost six times more – as “damages and interest” was excessive, disproportionate and unfounded”, writes the TF. Who further emphasizes that, “as the Appellant had not paid the disputed invoices, he had not suffered any damage”.

(jfz)