Dismissal of the appeal against the judgment of the Higher Court of the Canton of Zurich regarding a sales contract and the surrender of shares

Facts

The [X. AG] (plaintiff and appellant) and [A.] (defendant and respondent) concluded a sales contract on November 20, 2007, regarding all shares of [Z. AG] . The contract provided that the [X. AG] would pay the purchase price by issuing and transferring securities of its own legal entity. Later, the sales contract was contested due to intentional deception and error in the underlying facts, and it was revoked on March 30, 2009.

The [X. AG] filed a lawsuit against [A.] , requesting that the defendant be ordered to surrender 1,000 registered shares of [Z. AG] in exchange for the transfer of 60,000 registered shares of the plaintiff and 112,374 bearer participation certificates of the plaintiff, as well as CHF 800,910 in cash. The District Court of Zurich dismissed the lawsuit, and the plaintiff withdrew its main claim for the surrender of the securities.

The Higher Court of the Canton of Zurich dismissed the plaintiff's appeal, and the plaintiff filed an appeal with the Federal Supreme Court. The appellant requested that the federal supreme court revoke the higher court's judgment and order the defendant to pay CHF 14,237,500, minus CHF 800,910, in exchange for the transfer of 60,000 registered shares of the plaintiff and 112,374 bearer participation certificates of the plaintiff.

Considerations

The Federal Supreme Court examined the admissibility of the appeal and found that the appeal was directed against a final and binding decision of a higher cantonal court and that the appeal period had been observed.

The appellant argued that the revocation agreement of March 30, 2009, was invalid and that the defendant had not been in a state of incapacity. However, the lower court found that the plaintiff had waived its claim for surrender by withdrawing its main claim.

The Federal Supreme Court confirmed the lower court's opinion that, even if the revocation agreement were invalid, the plaintiff would only have had a claim for vindication of the shares of [Z. AG] , but had waived this claim by withdrawing its main claim.

The appellant claimed that the lower…