Facts
The purpose of B. AG is the distribution of gravel, sand, chippings, etc. Its share capital amounts to CHF 300,000 and is divided into registered shares of CHF 1,000 each. A. owns 72 shares and together with his sons C. and D. (39 shares each) holds half of the share capital; his brother E. owns 130 shares and together with his wife F. and his daughter G. (10 shares each) also holds half of the share capital of the defendant. E. is a delegate of the Board of Directors, C. a member of the Board of Directors and D. the Director of the defendant.
A. filed an application with the Commercial Court of the Canton of Aargau to set aside the resolution of the General Meeting of the defendant of 30 June 2000 on the discharge of the Board of Directors. The Commercial Court dismissed the action, as the votes of A. for the discharge resolution had rightly been disregarded, since his representative as Director of the defendant had himself participated in the management and was therefore excluded from the right to vote pursuant to Art. 695 para. 1 CO.
A. appealed against the judgment of the Commercial Court.
Considerations
Pursuant to Art. 695 para. 1 CO, persons who have participated in the management in any way have no voting rights in resolutions on the discharge of the Board of Directors. The prevailing doctrine holds the view that this statutory exclusion of voting rights also applies to the (appointed) representative of such a shareholder.
The discharge resolution causes any potential claims for damages of the company against its governing bodies to lapse. The discharge resolution is one of the non-transferable powers of the…