Claim against the company and the general contractor for accounting and profit distribution

Facts

C. as well as A. and B. (plaintiffs) founded a simple partnership on June 29, 1993 with the purpose of developing a property and then selling it profitably. The X. AG (AG) owned by C. was to act as the general contractor and carry out the development "with open accounting and a general contractor's fee of 4 percent". The partnership agreement provided for Zurich as the place of jurisdiction.

On February 8, 1999, the plaintiffs applied to the District Court of Meilen, requesting that C. and the AG be ordered to provide an accounting and distribute the profits. The defendants argued for dismissal of the claim against the AG, as it was not a party to the consortium agreement. The District Court of Meilen did not enter into the claim and transferred the case to the District Court of Zurich.

In the proceedings before the District Court of Zurich, the AG again raised the objection of lack of local jurisdiction. The District Court of Zurich did not enter into the claim in this respect. On appeal by the plaintiffs, the High Court of the Canton of Zurich affirmed the jurisdiction of the District Court of Zurich, overturned its decision not to enter into the claim, and instructed it to also take up the claim against the AG. On a cantonal nullity appeal by the AG, the Court of Cassation of the Canton of Zurich decided that the jurisdiction agreement was not binding for it.

Simultaneously with the cantonal nullity appeal, the AG filed a federal appeal with the request to overturn the decision of the High Court and confirm the decision of the District Court of Zurich not to enter into the claim.

Considerations

The Federal Supreme Court dismisses the appeal of the AG.

Pursuant to Art. 38 of the Gerichtsstandsgesetz (GestG), the place of jurisdiction for claims pending at the time of the entry into force of this law remains in effect. A claim pending at the time of the entry into force of the GestG may only be dismissed for lack of local jurisdiction if there is no place of jurisdiction under either the old or the new law.

Art. 7 para. 1 GestG covers not only the necessary, but also the simple…