Facts
By public deed dated June 22, 1964, the brothers V.X., H.X. and W.X. founded X. AG (hereinafter referred to as the Defendant), a general and construction company headquartered in Z. W.X. (hereinafter referred to as the Plaintiff) subscribed a single registered share with a nominal value of CHF 1,000 and paid it in cash, while V.X. took over 74 and H.X. 75 of the total 150 registered shares. On August 18, 1995, the Plaintiff wanted to attend an extraordinary general meeting, which was denied to him by the Chairman of the Board of Directors of the Defendant, as he disputed the Plaintiff's status as a shareholder.
By claim dated October 18, 1995, the Plaintiff requested the Commercial Court of the Canton of Aargau to annul the resolutions of the extraordinary general meeting of the Defendant of August 18, 1995, or alternatively to declare their nullity. Furthermore, it was to be determined that the Plaintiff is a shareholder of the Defendant with one share, and the extraordinary general meeting is to be properly repeated. The Commercial Court dismissed the claim by judgment of September 16, 1997.
The appeal filed by the Plaintiff against this decision was dismissed by the Federal Supreme Court.
Considerations
The Federal Supreme Court concludes that the legal assignment pursuant to Art. 401 para. 1 CO not only covers property rights, but also participation rights. This is justified by the fact that a separation of the legal position into participation rights on the one hand and property rights on the other hand should be avoided, as it could occur before the revision of the Stock Corporation Act, particularly in the transfer of registered shares with transfer restrictions.
The Federal…