Facts
The parties were partners in a simple partnership (Art. 530 ff. CO) engaged in trading nuts, dried fruit and coffee. The plaintiff and counterclaim defendant ([B.] , respondent) was the sole shareholder of [C. AG] ; the defendant and counterclaimant ([A.] , appellant) was a partner. At the beginning of 2012 the parties concluded a "Swiss Gourmet Partnership Agreement (Draft)". The plaintiff was responsible for sales in North America, the defendant for sales in Europe. Profits were calculated by means of an "Estimated Profit & Loss Statement" (EPL). At the end of 2015 the parties dissolved the partnership; the last EPL (financial year 2015) was prepared on 16 November 2016. The profit shares for 2015 are in dispute.
On 28 March 2019 the Basel-Landschaft East District Civil Court dismissed the plaintiff's action and partially ordered the plaintiff to pay USD 439'578.59 on the counterclaim. By way of counterclaim, the defendant also demanded, in the context of a staged action (rejoinder/counterclaim reply), an accounting of the final sale prices of the 93'210 kg of nuts on hand on 31 December 2015, the purchase prices and the resale of purchased goods, under threat of the penalty for disobedience pursuant to Art. 292 SCC.
The Basel-Landschaft Cantonal Court (decision of 8 September 2020) admitted the staged action for examination but denied a substantive claim to an accounting. It held that, pursuant to No. 3 lit. d of the Partnership Agreement, withdrawal with a one-year notice period and payment at market value was possible; the remaining partner would continue the business, so that an EPL settlement as at 31 December 2015 was to be carried out in accordance with the previous practice. Open goods contracts were to be taken into account only for goods already delivered and invoiced but unpaid. The Cantonal Court reduced the counterclaim amount to USD 330'726.59 plus interest and USD 35'163.75, and set aside the claim for value added tax in the party compensation.
By appeal in civil matters of 25 November 2020, the defendant essentially requests that the decision be set aside insofar as the dismissal of the accounting claims was upheld, and that the matter be remitted. The respondent requests that the appeal be dismissed insofar as it is admissible. The lower court waived a statement of position.
Considerations
The appeal in civil matters is subject to the principles governing complaints (Art. 95, 96, 42 para. 2 FSCA); the Federal Supreme Court bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA), and complaints regarding facts are subject to the strict principle of complaint (Art. 106 para. 2 FSCA). It is undisputed that a simple partnership (Art. 530 ff. CO) existed and that the amendment of the action from a performance claim to a staged action was admissible only in the rejoinder.
When a partner withdraws, his share accrues to the remaining partners (Art. 542 CO; Art. 545-547 CO). In the absence of a divergent contractual agreement, the value of the company is to be calculated on going-concern values, with Art. 580 CO applying in addition. For pending transactions, the calculation follows the contractual method or objective criteria. A profit from concluded but not yet settled transactions is to be recognised as an asset, as are secured expectancies; mere profit opportunities, by contrast, are not.
The Federal Supreme Court criticises the lower court's reasoning as legally flawed on two points: firstly, the question of how pending contracts are to be valued in the liquidation balance sheet is a question of law and not of fact, so that the rule on the burden of proof was wrongly applied. Secondly, the finding that the EPL settlement corresponded to the parties' original intention is untenable and arbitrary, since both parties agreed that the contract contained no provision for pending transactions upon withdrawal. The appellant is therefore entitled to a share of profits based on going-concern values; the denial of all accounting claims based on the EPL practice is untenable.
With regard to the 93'210 kg of nuts in storage, there is a secured legal position, since the goods were stored and the sales contracts had been concluded; the nuts were financed with partnership funds. Accordingly, there is in principle an obligation to account for…