Facts
In January 1985, A. (the appellant), B. (the respondent), and C. jointly founded D. AG and concluded a shareholders' agreement (ABV). This contained, among other things, provisions on a right of first refusal, the claim of the three founding shareholders to a seat on the Board of Directors, and distributions from D. AG to them. In particular, it was agreed that as soon as A.'s salary increases in real terms by more than CHF 10,000, or exceeds CHF 110,000 per year after adjusting for inflation, the company must pay B. 64 (recte: 34) % of the amount exceeding this. The contract was concluded "irrevocable for an indefinite period" and changes were only possible with the written consent of all three founding shareholders. In the event of a breach of the contract, a contractual penalty of CHF 40,000 per violation was stipulated. A. terminated the ABV in April 1999, which B. rejected. The cantonal instances largely upheld B.'s claim and obliged A. on the one hand to elect B. to the Board of Directors at the next General Meeting, and on the other hand to pay him a total of CHF 160,000 for four alleged breaches of the contract. The Federal Court partially upholds A.'s civil law appeal and partially dismisses the claim.Considerations
The Federal Court examines whether the shareholders' agreement is excessively binding and thus violates Art. 27 para. 2 of the Swiss Civil Code (ZGB). It finds that an excessively binding agreement in violation of Art. 27 para. 2 ZGB is not to be determined ex officio, unless the core personal area of a person is affected. Rather, the person to be protected has a "plea" against the claim for performance of the counterparty and can refuse to perform the contract; a termination is not necessary.
In the overall assessment of the contract, which had…