Facts
On April 2, 1952, the Appartementhaus Platte AG was founded in Zurich. The shares were subscribed by the three directors Heinrich Welti, Fritz Maurer, and Dr. Hugo Oftinger. Welti had only pretended to pay the amount for his shares and immediately withdrew it.
The company went bankrupt on May 31, 1956. The bankruptcy administration assigned a claim of CHF 70,000 from the founders' liability of the former director Welti to the plaintiff Dr. Oftinger and two other creditors. Oftinger then filed a claim for damages in the amount of CHF 20,000.
The Cantonal Court of Zurich dismissed the claim, as all three founders were aware of and approved the simulated cash foundation. Therefore, neither the company nor the plaintiff as a creditor could claim damages.
Considerations
The Federal Supreme Court upholds the judgment of the Cantonal Court. It states that the claim of the individual shareholder or creditor for compensation of indirect damage in the bankruptcy of the company initially belongs to the bankruptcy administration for enforcement. If the administration waives this, the shareholder or creditor can demand the assignment of their right to sue.
In the present case, the assignment to the plaintiff could only include his own claims, not those of other creditors or…