Facts
The Swiss Electricity Works Pension Fund (PKE) granted construction loans to a building contractor in 1947/48 for the construction of four residential buildings in Zug. As the contractor went bankrupt, the PKE had the houses completed at its own expense and auctioned them off in June 1950.
In the spring of 1951, E. Gasser, Master Builder Weber, and Engineer Nardi decided to found the "Wohnbau A.-G." to acquire the houses from the PKE. A purchase price of CHF 175,000 per house was envisaged. Egger, the managing director of the PKE, promised the founders a loan from the PKE to raise the share capital.
On June 6, 1951, the three founders received a loan of CHF 100,000 from the PKE as start-up capital for Wohnbau A.-G. The shares were deposited with the PKE in trust until the loan was repaid. On June 20, 1951, Wohnbau A.-G. purchased the properties from the PKE for CHF 175,000 each.
The board of directors appointed by the new board of directors filed a lawsuit against the PKE for the nullification of the real estate purchase contracts, as the provisions on the acquisition of assets had not been observed.
Considerations
The Federal Supreme Court confirmed that the real estate purchases on June 20, 1951 were acquisitions of assets within the meaning of Art. 628 para. 2 CO. The information required by Art. 628 para. 2 and Art. 636 CO in the articles of association and a special resolution would have been necessary, which, however, had not been done.
The Federal Supreme Court held that the concept of asset acquisition should be interpreted…