Facts

This judgment concerns the liability of the Board of Directors and the Auditor of [F. AG] towards the bankruptcy estate of the company. The plaintiff, [A.] Ltd., as an assignee creditor, has asserted claims for damages against the respondents 1 (Board of Directors), 2 (Auditor) and 3 (parent company of the Board of Directors).

The lower court, the Commercial Court of the Canton of Aargau, had dismissed the claim in its entirety. [A.] Ltd. appealed against this judgment to the Federal Supreme Court.

Considerations

The Federal Supreme Court partially upheld the appeal

  • It affirmed the passive legitimacy of respondent 3 pursuant to Art. 753 CO (liability for incorporation) in connection with the capital increase and remanded the case to the lower court for a new assessment.
  • It also found that the plaintiff had rightly claimed the damages in Swiss francs, as the damage had occurred…