Joint and Several Liability of Shareholders in the Sale of Shares

Facts

The case concerns the sale of 500 shares of the public limited company Y. by the shareholders A., B., C., D. and E. to the cooperative X. in 1982. According to the purchase agreement, the sellers were obliged to bear the capital gains tax. Since the shareholder E. did not pay his share of CHF 131,910.-, the cooperative X. had to settle this amount plus interest of a total of CHF 146,308.80.

The cooperative X. then sued the sellers A., B., C., D. and E. for reimbursement of this amount under joint and several liability. The District Court of Pfäffikon and the High Court of the Canton of Zurich upheld the claim. The defendants 1-4 appealed against the judgment of the High Court to the Federal Supreme Court.

Considerations

The Federal Supreme Court dismissed the appeal and confirmed the joint and several liability of the defendants. It stated that the sellers had acted as a simple partnership in the sale of the shares, even if they may not have been aware of this. The decisive factor is that the shares were sold and transferred en bloc, without any division of the shareholding or the purchase price. From these circumstances, the buyer was entitled to assume under the principle of trust that the sellers were jointly and severally liable.

Even if there had been no simple partnership, a…