Personal Liability of the Board of Directors
The board of directors cannot be held personally liable as long as it acts within the scope of its duties. Personal liability arises only if a member of the board breaches their duties as a corporate body and thereby causes damage to the company, a shareholder or a creditor.
Financial Competence of the Board of Directors
The board of directors has numerous duties which it must carry out with due diligence. In particular, financial competence represents a key responsibility. It forms the foundation for effective financial management of the company, especially in times of crisis.
Lack of organisation in disputed share ownership relationships
In its ruling of 25 June 2024, the Cantonal Court of Lucerne stated that unclear or disputed ownership of shares only constitutes an organisational deficiency within the meaning of Art. 731b CO if the functioning of the general meeting is completely impaired as a result.
Liability of a silent partner
In judgement 4A_342/2023 of 5 June 2024, the Federal Supreme Court states that a silent partnership is not sufficient to establish joint and several liability. This also applies if the relationship is known to the outside world.
If companies do not meet the requirements for exemption from the obligation to appoint an auditor, they must appoint an auditor and have it entered in the commercial register.
If a company fails to make this election and registration, the company has an organizational deficiency. If this organizational deficiency is not remedied, the company can be dissolved by the court.
The distinctiveness of companies
In its decision of August 28, 2023, the Federal Supreme Court clarified the question of the requirements for the distinctiveness of two companies (BGer 4A_238/2023).
Right of inspection of a shareholder
Shareholders of a GmbH have a right of inspection. Art. 802 para. 2 CO regulates the scope. What does it cover?
Under what conditions can a resolution of the Annual General Meeting be contested?
In a public limited company, the law of the jungle applies. The Annual General Meeting passes resolutions by a majority of the votes represented (with the exception of special cases; OR 703). However, the losing shareholders are not at the mercy of the majority without protection.