Facts
The plaintiff A.D. and her deceased husband B.D. had filed a lawsuit against the defendants X. and Y. for liability under company law. The lawsuit was approved by the District Court of Zurich with a judgment of July 29, 2002, and the defendants were sentenced to pay jointly and severally CHF 400,000.- plus interest. The High Court of the Canton of Zurich confirmed this judgment with a judgment of May 18, 2004. The defendants filed a federal appeal against this judgment.
The plaintiff A.D. is the wife and sole heir of the deceased B.D. B.D. and the plaintiff had filed a lawsuit against the defendants as well as a board member of Z. AG, who had since withdrawn from the proceedings after concluding a settlement, for liability under company law after conducting a mediation hearing at the District Court of Zurich on June 22, 2000.
The plaintiffs requested that the defendants be sentenced to pay them jointly and severally CHF 400,000.- plus 5% interest since January 6, 1998. The plaintiffs based their claim on claims of the estate of the bankrupt Z. AG, which the bankruptcy office of Hottingen-Zurich had assigned to B.D., C.D., and D.D. on October 19, 1998, pursuant to Art. 260 DEBA.
Considerations
The Federal Court dismissed the defendants' appeal. The defendants had claimed that the lawsuit of the deceased B.D., who had died after the first-instance judgment was rendered, was null and void because he had become incapable of judgment after a stroke before the proceedings were initiated and therefore lacked the capacity to be a party to the proceedings as a procedural aspect of capacity to act.
However, the Federal Court found that the authorization granted by a legal transaction pursuant to Art. 35 para. 1 CO does not necessarily expire with the loss of capacity to act of the principal. The power of attorney can be validly agreed upon to continue beyond the potential loss…