Facts
A. commissioned B. to establish a Swiss joint-stock company in 1979, and B. subscribed to 48 shares in a fiduciary capacity. At extraordinary general meetings in 1982, 1986, and 1988, decisions were made regarding the registered office and the name of the company. In 1988, A. filed an action for a declaration of nullity of these decisions, claiming to be a shareholder. The Commercial Court dismissed the claim, considering that A. had not become a shareholder. A. appealed.Considerations
According to established case law, the fiduciary who subscribes to shares on behalf of the principal of the fiduciary mandate is the true founding member and becomes a shareholder. Pursuant to Art. 401(1) CO, the creditor's rights acquired by the agent on behalf of the principal are transferred to the principal as soon as the latter has fulfilled his obligations towards the agent. However, during the fiduciary relationship, the corporate rights belong exclusively to the fiduciary, and third parties may consider him as such even after the legal transfer, as long as it has not been brought to their attention.
In the present case, it is not established that the fiduciary mandate had ended before the contested general meetings, nor that the transfer of rights had been notified to the company. A. was therefore not a shareholder at the time of the challenged decisions, and the participation rights belonged…