Facts
In this case, it was about a mandate agreement between C. AG (plaintiff) and A. as well as B. AG (defendants) dated April 30/May 4, 2008. In this, C. AG undertook to advise and support the defendants in the sale of B. AG. As compensation, the parties agreed on a monthly processing fee of CHF 25,000 as well as a performance-based "success commission" of at least CHF 170,000 and an additional "incentive" upon reaching a minimum sale price.
The defendants terminated the mandate agreement in August 2008. In January 2009, E. AG announced that it had acquired a stake in B. AG. C. AG then filed a lawsuit against the defendants and demanded information about the agreements with E. AG.
Considerations
The Federal Supreme Court first had to clarify whether the mandate agreement should be qualified as a brokerage contract or a simple mandate. The assessment of the agreed compensation was decisive for this.
The Federal Supreme Court concluded that the mandate agreement should be qualified as a simple mandate. Although the agreement contained a performance-based component in the form of the "success commission" and the "incentive", these elements do not change the classification as a simple mandate, as C. AG had to provide comprehensive advisory and support services for the defendants. Such activities, which go beyond the mere brokerage activities of a broker,…