Facts
The Ems-Chemie Holding AG and the Pent Holding Ltd. had each held a 50% stake in Spintex AG since 1971. At the end of 1980, they jointly transferred their shareholdings in Spintex AG to a foreign acquirer and each took over half of the Spintex AG's shareholdings in Kammgarnspinnerei Interlaken AG and another company. However, the bearer shares of Kammgarnspinnerei Interlaken AG remained undivided in the custody of the Ems-Chemie Holding AG. In April 1983, the Pent Holding Ltd. concluded an agreement with Schmid AG Gattikon to take over half of the share capital of Kammgarnspinnerei Interlaken AG. However, the Ems-Chemie Holding AG refused to release the shares. Thereupon, Schmid AG Gattikon filed a lawsuit against the Ems-Chemie Holding AG for the release of the shares.Considerations
The Federal Supreme Court came to the following conclusion: a) Since the bearer shares of Kammgarnspinnerei Interlaken AG were not segregated, the Pent Holding Ltd. and the Ems-Chemie Holding AG (formerly Ems-Werke AG) did not acquire sole ownership, but only co-ownership of the shares. This co-ownership is associated with the right to demand the release of the shares corresponding to the co-ownership share at any time, without the need to terminate the…