Facts
Clinique Bellerive SA (CBSA) was founded in 1969 to operate a clinic near Geneva. To finance this, CBSA shares were issued and distributed by Dispo AG Zurich. In 1975, CBSA went bankrupt, and the investors lost their money.
X. and Mrs. Y. had subscribed to CBSA shares and sued Interallianz Bank Zurich AG and Max Hänsli for damages. The Federal Supreme Court set aside the first-instance judgment and remanded the case for re-evaluation to the Commercial Court.
Considerations
The Federal Supreme Court concluded that the CBSA shares were publicly advertised and therefore qualified as an investment fund-like special fund subject to the Federal Act on Investment Funds (AFG). The defendants could be liable for damages under Art. 25 para. 2 AFG if they intentionally or negligently made or disseminated incorrect or legally non-compliant information in the advertising.
The Commercial Court must now examine whether the defendants were actually responsible for the advertising and whether their statements about the legal nature, security, return, and commissions complied with the legal requirements. It must also be clarified whether the defendants are at fault.
Furthermore, the Commercial Court has to assess whether the defendants are liable for contractual breaches as bodies of the fund…