Schweizerisches Bundesgericht, 4C.175/2003 vom 28.10.2003 - Zur Frage der rechtsmißbräuchlichen Berufung auf Formnichtigkeit bei einem bereits teilweise erfüllten Vertra

The decision by the Swiss Bundesgericht was based on the following facts. The parties were the sole shareholders of the X-AG [public limited company] and the Y-GmbH [limited company]. In 1999 they agreed, without being aware of the special form requirement in respect of the transfer of a share in the GmbH, that the plaintiff would resign from both companies and transfer his shares in the X-AG to the GmbH and his core-shares in the Y-GmbH to the defendant. In exchange the plaintiff was entitled to a sum of 670,000 Swiss Francs, payable in four instalments. After having paid the first instalment of 400,000, the defendant denied further payment upon knowledge and immediate notification of the lack of form, i.e. the missing notarisation of their agreement. All instances, including the Swiss Bundesgericht, rejected the claim by the plaintiff, arguing that the defendant did not abuse his right by invoking the lack of form of their agreement, i.e. the fact that the transfer of the shares was not notarised. Their agreement was concluded without the knowledge of this form requirement. In addition, it was considered indivisible, and thus completely void; it was irrelevant that the agreement was performed partly.