Facts
In the bankruptcy of X., former member of the executive board of BANKAG, Bank-Aktiengesellschaft für Vermögensverwaltung und Wertschriftenverkehr in liquidation, the bank Y. filed, among other claims, a claim for damages of 3 million Swiss francs. This was based on the fact that X. had obtained the loans from Y. by submitting false balance sheets and making untrue statements about the financial position of BANKAG.
The single judge partially upheld the claim of the BANKAG liquidator and reduced the damages claim to 2,080,489.30 Swiss francs. The Higher Court of the Canton of Zurich overturned this decision and allowed the full damages claim of 3 million Swiss francs.
Considerations
The Federal Supreme Court confirmed the decision of the Higher Court. It stated that while X. as a corporate body of BANKAG could in principle only have bound BANKAG and not himself, insofar as he had induced bank Y. to grant the loan by submitting false balance sheets and making untrue statements about BANKAG's financial position, he had committed an unlawful act for which he was personally liable.
The Federal Supreme Court clarified that the damages claim of bank Y. was not an indirect damage within the meaning of Art. 43 para. 3 BankG or Art. 756 CO, but a direct damage that bank Y.…