Rejection of the company's right to information against the former managing director

Facts

The A. GmbH (appellant) had filed a lawsuit against its former managing director B. (respondent). It initially demanded information on various business transactions (para. 1) and further the conviction of B. to pay at least CHF 10,000.- plus interest, subject to a claim for a higher amount and subject to an amendment of the claim after the information has been provided or after the result of the taking of evidence (para. 2).

The Cantonal Court of St. Gallen denied its material jurisdiction for the request for information and therefore also did not enter into the claim for performance.

Considerations

The Federal Supreme Court confirmed the decision of the Cantonal Court. It stated that the general duty of loyalty of the managing director pursuant to Art. 812 CO does not give rise to a substantive legal claim of the company to be provided with information. The duty of loyalty under company law cannot be expanded to an independent contractual relationship that would establish a duty to provide information.

While the managing director as an organ has duties to provide information to the shareholders, these arise from Art. 802 para. 1 CO and not from Art. 812 CO. The legislator has expressly regulated duties to provide information where it saw a need…