Facts
The shares of Müllach AG had belonged to the assets of the distressed investment fund Hisa-National since 1963. The management of the fund was with Hisa-Verwaltungs AG, whose Chairman of the Board and sole shareholder was Alfred Roth. In 1968, the Swiss Federal Banking Commission revoked the authorization of the fund management to conduct business, as it had grossly violated its contractual and legal obligations. As a result, bankruptcy proceedings were opened against the assets of the fund management.
The Banking Commission objected that the fund management or Müllach AG had allegedly acknowledged owing CHF 455,455.85 to Progla Holding AG. On January 18, 1968, Alfred Roth, Grunda AG, and Progla reached an agreement whereby Progla Holding AG assigned an amount of CHF 180,000.-- from its acknowledged claim of CHF 455,455.85 against Müllach AG to Alex Bächstädt. Bächstädt had Müllach AG confirm the assignment on January 19, 1968.
Considerations
The Federal Supreme Court states that the fiduciary duty of the fund management laid down in Art. 14 of the Swiss Investment Fund Act (AFG) is of a contractual nature. Its violation therefore does not lead to the nullity of legal transactions, but only to claims for damages by the investors. The resolutions of the fund management cannot obligate the legally independent real estate companies.
The simulated legal transaction between Müllach AG and Progla Holding AG was a gratuitous transfer, which is…