Facts
The [A. AG] (plaintiff) had regular business relations with companies of the [G.] group. The plaintiff submitted invoices to [G.] CH for a total of CHF 923,081.61, which remained unpaid. [G.] CH was bankrupted in 1999 and the plaintiff reported a claim of a total of CHF 1,187,447.40. The bankruptcy administration authorized the plaintiff to assert claims for liability against the founders and organs of the bankrupt company.
The plaintiff sued the defendants ([B.] , [C.] , [D.] , and [E.] ) as organs of [G.] CH and requested that they be sentenced to pay CHF 1,174,567.06 plus interest under joint and several liability. The defendants were accused of having wrongfully provided funds to other group companies, ceased the operational activities of [G.] CH as of June 30, 1992, failed to deposit the balance sheet as of June 30, 1991, in violation of Art. 725 CO, and failed to ensure that [G.] CH had an independent auditing firm.
The Cantonal Court of Graubünden dismissed the complaint, as the statute of limitations had expired for breaches of duty committed by the defendants as organs of [G.] CH before September 3, 1991. The plaintiff appealed and argued that the lower court had violated Art. 760 and Art. 135 No. 2 CO.
Considerations
The Federal Court examined whether the lower court had violated Art. 760 and Art. 135 No. 2 CO by denying that the plaintiff's debt collection of September 29, 1998, had an interruptive effect on the statute of limitations. The court found that the plaintiff was not actively legitimized under any title to assert potential claims for liability under company law against the defendants before the bankruptcy of [G.] CH.
The court concluded that the actions and omissions of the defendants since the relevant date for the statute of limitations were not causal for the damage suffered by the plaintiff, as [G.] CH had already been over-indebted since mid-1991. The plaintiff argued that the Cantonal Court had misconstrued the relevant concept of damage by not qualifying the increase in [G.] CH's…