Liability of Organs of a Stock Corporation under Company Law

Facts

The SAirGroup, a stock corporation, was placed in bankruptcy liquidation in 2001. The liquidator of SAirGroup brought an action against the former organs of the company, including the board of directors and management, for breach of their duties in connection with the transfer of [X. AG] from SAirGroup to SAirLines in 2000. The plaintiff alleged that the transfer was made without consideration and that SAirGroup suffered damage as a result.

The District Court and the High Court of the Canton of Zurich dismissed the action. The court of first instance found that SAirGroup was not over-indebted at the time of the transfer and that the transfer of [X. AG] did not constitute a breach of duty.

Considerations

The Federal Court examined the appeal by SAirGroup and found that the court of first instance had rightly dismissed the action. The main reason given by the court of first instance, namely that SAirGroup was not over-indebted at the time of the transfer, was confirmed by the Federal Court.

The Federal Court also rejected SAirGroup's complaint that the court of first instance had violated the principle of Art. 759 para. 2 CO by awarding only one set of court costs despite multiple…