Facts
The [A. GmbH] (appellant) and the [B. AG] (appellee) were involved in a simple partnership, the "Baukonsortium [E.] ". The appellant brought an action against the appellee, who had been appointed as liquidator of the simple partnership, and requested that she be ordered to pay CHF 145,868.60 and an amount to be determined by the court of up to CHF 101,489.70, plus interest. The lower court dismissed the action, as the appellant was not actively legitimized and the appellee was not passively legitimized.
The appellant requested the FSCA to overturn the lower court's judgment and establish her active legitimacy and the appellee's passive legitimacy. She argued that as a partner in the simple partnership, she was entitled to assert claims for damages against the appellee.
Considerations
The FSCA examined the question of whether an individual partner in a simple partnership can alone assert claims for damages against a court-appointed liquidator. It concluded that the appellant, as a partner in the simple partnership, was not entitled to assert claims for damages against the appellee, as the claims of the simple partnership accrue to the partners jointly and can only be asserted by all partners together as necessary "active" co-litigants.
The FSCA also rejected the appellant's argument that she could derive her active legitimacy from the principles of "actio pro socio". It found that "actio pro socio" can only be brought against partners, not against third parties, and that the appellant was not…