Determination of the Existence of a Simple Partnership between a Mechanical Engineer and a Merchant

Facts

The mechanical engineer Kofmel conducted export business on the side. In 1954, he entered into business relations with the merchant and tennis instructor Minder, with Minder participating in the execution of Kofmel's export business. This collaboration lasted until August 1956. Upon its termination, there were differences of opinion regarding the legal nature of their relationship. Kofmel saw it as a service contract and terminated it, while Minder claimed the existence of a simple partnership within the meaning of Art. 530 et seq. CO and in turn declared the dissolution of the partnership for important reasons.

Minder filed a lawsuit with the requests for the determination of the existence of a simple partnership, the dissolution of the same for important reasons, and the obligation of the defendant to render an account. The Commercial Court of the Canton of Zurich upheld these requests.

Considerations

The Federal Supreme Court states that the lower court rightly upheld the plaintiff's request for the determination of the existence of a simple partnership between the parties. The declaratory action is admissible in the area of federal private law, even if the cantonal procedural law does not know it. The cantons can even impose less strict requirements on the interest in the declaratory judgment than is the case in federal law.

Whether the legal relationship of the parties is to be regarded as a simple partnership or as a service…