Facts
On July 26, 1965, the Dutch businessman Adrian Brouwer, residing in Valais, concluded a contract with Leitplanken AG, Hergiswil, regarding the acquisition of a shareholding in the company. Brouwer paid the company the amount of CHF 25,000. Of this, CHF 12,500 was recorded as "premium from share contract" and CHF 12,500 as "advance payment on shares Brouwer".
According to the contract, Brouwer was to receive a shareholding in the company corresponding to the ownership of 125 shares with a nominal value of CHF 100 each. The company undertook to either transfer 125 existing shares to him or to allocate him as many new shares in the event of a capital increase. Brouwer was invited to and attended the company's meetings, but neither received any shares nor was a capital increase carried out.
Brouwer then sued Leitplanken AG and its Board of Directors member Oskar Heimann for the repayment of the amount of CHF 25,000.
Considerations
The Federal Supreme Court came to the following conclusion
1. The two contracts dated July 26, 1965, are to be regarded as an agreement by which Brouwer was to be secured a shareholding in Leitplanken AG in the amount of 125 shares. The agreement does not violate Art. 19 and 20 CO nor is it void for other reasons.
2. The company could provide the plaintiff with shares without acquiring them itself by agreeing with shareholders that they would transfer shares directly to the plaintiff. The prohibition for joint-stock companies to acquire their own shares (Art. 659 para. 1 CO) does not preclude this.
3. The agreement that…