Facts
The plaintiff [X.] was the managing partner of the Shop-Tankstelle [A. GmbH] . The defendant [Y. AG] had a minority stake in the company and accused the plaintiff of violating the duty to forward fuel revenue and thus committing a criminal offense. The defendant quantified the embezzlement of petrol money at CHF 56'257.71 and claimed that the plaintiff had depleted the company with private benefits beyond the defined salary claims.
The defendant and the plaintiff entered into a payment agreement, which the plaintiff did not comply with. Thereupon, the defendant threatened to file a criminal complaint if the plaintiff did not submit a payment proposal by February 15, 2002. The plaintiff stated that he was unable to pay the debts and requested a waiver of the criminal complaint.
The District Court of Rheinfelden granted the defendant provisional enforcement of a partial amount of CHF 8'500.-- plus interest. The plaintiff filed a denial action, which the District Court dismissed. The High Court of the Canton of Aargau dismissed the plaintiff's appeal.
The plaintiff filed a federal appeal and requested that the contested judgment be set aside and that it be established that the claimed claim does not exist. The defendant requested that the appeal be dismissed at the expense of the plaintiff.
Considerations
The Federal Court examined whether the defendant's threat of a criminal complaint was unlawful. It found that the threat is only unlawful if there is no factual connection between the criminal offense and the claim made or if an attempt is made to obtain an unjustified benefit with the threat.
The Federal Court concluded that the lower court was correct in assuming that the defendant did not have to assert its claims against the company first.…