Facts
The sellers (respondents, defendants) sold all shares of [A. AG] , a company dealing in over-the-counter homeopathic medicinal products, under a share purchase agreement dated 22 May 2007 to [J. AG] , which was later renamed [A.] Holding AG (buyer, plaintiff, appellant). The purchase was preceded by an indicative valuation and a due diligence review by Deloitte. In the purchase agreement, the sellers warranted, among other things, that the required health-law authorisations were in place, that no proceedings were pending or in prospect, and that all documents essential to the value and the activities of the company had been produced.
In 2008, 2009 and 2011, the FDA seized homeopathic products of the buyer upon importation into the USA on account of impermissible labelling. In a notice of defects dated 26 June 2009, the buyer complained that the FDA had already sent 'Warning Letters' concerning product labelling to [A. AG] on 5 May 2003 and 16 August 2005, which had never been mentioned during the sale negotiations. The sellers disputed the relevance of these letters.
On 30 October 2013, the buyer brought an action before the Bremgarten District Court for payment of a total of USD 13'478'076.-- (renaming costs and lost profits for 2011 and 2012), based on intentional deception. The District Court dismissed the action on 7 September 2017 after a main hearing and taking of evidence. The Aargau Cantonal Court of Appeal dismissed the appeal on 27 June 2019 (ZOR.2018.39). By appeal in civil matters, the buyer requested that the judgment be set aside and the action upheld, or alternatively that the case be remitted. The sellers requested dismissal of the appeal. The lower court waived a response.
The lower court based its dismissal of the action on several grounds: the main ground was lack of intent to deceive (dolus eventualis suffices, but was not proven), the alternative ground was insufficient substantiation of damage and diminution in value, and the further alternative ground was that causation was not proven.
Considerations
The Federal Supreme Court holds that the provisions on the sale of movables (Art. 187 ff. CO) apply to the sale of a company (share deal). In a share deal, statutory warranty relates only to the existence and scope of the rights; the sellers are liable for the economic value only where specific assurances have been given (Art. 197 CO). In cases of intentional deception, the ten-year limitation period under Art. 127 CO applies, and neither the duty to give notice of defects (Art. 201 CO) nor the short limitation period for sale-law claims (Art. 210 CO) restricts the claims. Both damages (Art. 97 in conjunction with Art. 42 CO) and reduction of the price (Art. 205 para. 1 CO) require intentional deception.
Since the lower court's judgment rests on several independently sufficient grounds, the appellant must challenge all of them successfully. The Federal Supreme Court therefore examines the alternative ground concerning substantiation. The lower court did not impose excessive requirements (Art. 55 para. 1 CPC). The appellant referred generally to annual accounts, sales statistics and a party expert opinion, without breaking down the damage calculation into individual facts. A global reference to documents is insufficient according to settled case law, unless the information is…