Liability of members of the board of directors of a bankrupt joint-stock company

Facts

This case concerns a liability action brought by the assignee creditors of the bankruptcy estate of company Z. SA against the members of the company's board of administration. The creditors are acting in two capacities:

• As assignees of the rights of the bankruptcy estate, they are asserting the rights that the bankrupt company could have asserted against its directors on the basis of their liability (derivative action).
• As assignees of the liability action based on Art. 756 para. 2 CO, they are acting in their personal capacity to obtain compensation for the indirect damage they have suffered as creditors of the company.

Considerations

The Federal Tribunal examines the legal nature of the action and concludes that

a) The derivative action can be dismissed because the defendants, as majority shareholders, have tacitly consented to the acts complained of.

b) However, the personal…