Claim for Reimbursement by the Foreign-Controlled Company Due to a Void Loan Agreement

Facts

A. AG (Plaintiff, Appellant) and the foreign-controlled B. SA (Defendant, Respondent) signed a contract on October 23, 2015, which was designated as a "Loan Agreement", under which the Defendant granted the Plaintiff a loan amount of CHF 1,800,000. With this amount, the Plaintiff acquired a multi-family house in Switzerland, while repaying the Defendant a remaining amount of CHF 640,000.

The Defendant later initiated debt collection proceedings against the Plaintiff for the remaining loan amount of CHF 1,234,592.90 plus interest, as well as for the loan interest. The Plaintiff filed an objection and brought declaratory actions at the Commercial Court to declare the claims in debt collection as null and void.

The Commercial Court found that the loan agreement was null and void under the Federal Act on the Acquisition of Real Estate by Persons Abroad (BewG) and that the Defendant had a claim for reimbursement pursuant to Art. 26 para. 4 lit. b BewG. The Plaintiff appealed against this judgment to the Federal Supreme Court.

Considerations

The Federal Supreme Court dismissed the appeal. It stated that the lower court had not violated the principle of party disposition under Art. 58 para. 1 CPC and Art. 83 para. 2 DEBA by granting the Defendant a claim for reimbursement based on Art. 26 para. 4 lit. b BewG.

The subject matter of the declaratory action is limited to the existence and maturity of the claim in debt collection at the time the…