Brokers, forwarders and the instruments of credit

The sensale: the sworn broker

Every market and every Sust on the Gotthard route had its brokers. The Italian term was sensale, the German Makler or Unterkäufer. The broker brought buyer and seller together, verified the quality and quantity of the goods, negotiated the price and recorded the terms of the bargain, for which he received a fee from one or both parties.¹ In the towns of the bailiwicks the brokers were licensed by the town or the landfogto, took an oath to act honestly and impartially and were forbidden to trade on their own account in the goods they brokered. Their records had evidentiary value, and in disputes the court heard the broker as a witness of the terms agreed. In the cattle trade the broker was indispensable, because the buyer from Lombardy and the seller from central Switzerland spoke different languages, used different currencies and did not know each other.

The broker's function survives in the modern law. The Swiss Code of Obligations defines the brokerage contract as a contract by which the broker undertakes, against remuneration, to indicate an opportunity to conclude a contract or to act as an intermediary in its conclusion (Art. 412 CO).² The statutory prohibition on trading on one's own account has disappeared from the general law of brokerage, but it reappears in the regulated sectors, for example in the conduct of business rules of the Financial Services Act, which require financial service providers to take organisational measures against conflicts of interest.³

Forwarders and commission agents

From the sixteenth century onwards the organization of the long-distance trade shifted from the merchant who travelled with his goods to the merchant who stayed at home and entrusted his goods to agents along the route. Two figures emerged. The first was the forwarding agent (Spediteur, Italian spedizioniere), who received goods from the sender, arranged for their carriage through the successive stages of the road, paid the tolls and fees in advance and delivered the goods to the consignee or his agent at the destination.⁴ Forwarders were established in the towns at the junctions of the route: Lucerne and Flüelen, Altdorf, Airolo, Bellinzona, Magadino, Lugano and Como. They dealt with the carriers' associations and the Sustmeister, negotiated Strackfuhr where possible and kept accounts with the merchants who used their services. From the sixteenth century the large forwarding firms placed agents, at first Italians, at the junctions of the route. In the seventeenth century, when the number of firms declined and the survivors reached a quasi-monopolistic position on the routes over the Grisons passes and the Gotthard, local citizens increasingly took over these posts and developed into independent forwarders with their own range of action.⁵ The second figure was the commission agent (Kommissionär, Italian commissionario), who bought or sold goods in his own name for the account of a principal. The commission agent in Lugano or Bellinzona could sell the cheese or the cattle of a Lucerne merchant, or buy grain and rice for him in the Lombard markets, without the principal's name being disclosed to the other party. The commission system allowed merchants to operate in distant markets without travelling and to use the local knowledge and credit of the agent.⁶ Many forwarders were also commission agents, many of whom also acted as bankers for their principals: they advanced money against goods consigned to them, accepted and paid bills of exchange and kept current accounts.

The modern Code of Obligations regulates both roles. The commission agent is a person who undertakes to buy or sell movable property or securities in his own name for the account of the principal against a commission (Art. 425 CO).⁷ The commission agent may, if the principal has not provided otherwise, deliver the goods himself as seller or take them himself as buyer where they have a market or stock exchange price (Art. 436 CO), a rule that reflects the long practice of agents who dealt on their own account.⁸ The forwarding contract is treated as a commission contract, with the forwarding agent who undertakes to arrange the carriage of goods in his own name for the account of the principal subject to the rules on commission and, as regards the carriage itself, to the rules on the contract of carriage (Art. 439 CO).⁹

Notes

1. HLS, art. "Makler"; on the sensali in the statutes of the bailiwicks, Ceschi (ed.), Storia della Svizzera italiana dal Cinquecento al Settecento (as above). ↩
2. Code of Obligations, SR 220, Art. 412 para. 1, English translation at lawbrary.ch, https://lawbrary.ch/law/art/OR-v2024.01-en-art-412/print. ↩
3. Federal Act of 15 June 2018 on Financial Services (FinSA), SR 950.1, Art. 25 (organisational precautions against conflicts of interest), at droit-bilingue.ch, https://droit-bilingue.ch/de-en/9/95/950.1-25-28.html. ↩
4. HLS, art. "Transportgewerbe" (Fritz Glauser, version of 11.02.2015), https://hls-dhs-dss.ch/de/articles/014052/2015-02-11/: the forwarding firms "besorgten bei den örtlichen Herren das Geleit, boten die Transportmittel an Ort und Stelle auf und bezahlten Löhne, Gebühren und Zölle". ↩
5. HLS, art. "Transportgewerbe" (Fritz Glauser, version of 11.02.2015), https://hls-dhs-dss.ch/de/articles/014052/2015-02-11/: "Diese Firmen erreichten besonders im 17. Jahrhundert, als ihre Zahl abnahm, auf den Routen über die Bündnerpässe und den Gotthard eine monopolartige Stellung"; "Ab ca. 1520 setzten sie an den Verkehrsknotenpunkten sogenannte Faktoren ein, die aus Italien stammten"; from the seventeenth century local citizens became "selbstständigen Spediteuren mit eigenem Aktionsradius". ↩
6. HLS, art. "Transportgewerbe" (Fritz Glauser, version of 11.02.2015), https://hls-dhs-dss.ch/de/articles/014052/2015-02-11/: the local forwarders "verbanden die Spedition mit Kommissionshandel, Bankgeschäften und Zahlungsvermittlungen"; HLS, art. "Banken" (Martin Körner, Youssef Cassis, version of 17.08.2006), https://hls-dhs-dss.ch/de/articles/014061/2006-08-17/: "Diese reisenden Kaufleute und Geldverleiher entwickelten sich im Spätmittelalter zu sesshaften Bankiers". Further literature: Hans Conrad Peyer, Von Handel und Bank im alten Zürich (Zurich 1968). ↩
7. Code of Obligations, SR 220, Art. 425 para. 1 (French text at droit-bilingue.ch, https://www.droit-bilingue.ch/fr-en/2/22/220-425-640.html: "Le commissionnaire en matière de vente ou d'achat est celui qui se charge d'opérer en son propre nom, mais pour le compte du commettant, la vente ou l'achat de choses mobilières ou de papiers-valeurs, moyennant un droit de commission"). ↩
8. Code of Obligations, SR 220, Art. 436 para. 1, English translation at lawbrary.ch, https://lawbrary.ch/law/art/OR-v2024.01-en-art-436/print. ↩
9. Code of Obligations, SR 220, Art. 439, English translation at lawbrary.ch, https://lawbrary.ch/law/art/OR-v2024.01-en-art-439/print. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of October 2026.