Roland von BürenWarum der Konzern keine einfache Gesellschaft ist – eine Replik

Roland von Büren/Michael Huber, Warum der Konzern keine einfache Gesellschaft ist – eine Replik, SZW 5/1998, p. 213 ff.

Background

Prof. Dr. Roland von Büren wrote this text as a response to the text by Porf. Dr. Peter Henry and Francesca Birchler, Les groupes de sociétés sont des sociétés simples, in: SZW 3/1998, p. 113 et seqq.
The text is a part of an opinion dispute between the authors regarding the question if a group of companies can be defined as an unregistered partnership pursuant to Swiss Law.
Prof. Dr. Henry Peter and Francesca Birchler think that a group of companies can also be considered an unregistered partnership, because there is a common purpose between the single companies of a group of companies.

Prof. Dr. Roland von Büren on the other hand says that there is no ground to define the group of companies as an unregistered partnership, because there can’t be find is a common purpose. According to the author, his view was followed by the Swiss Federal Court in the leading case Musikvertrieb AG v. Motor-Columbus AG (BGE 124 III 297; see also the unpublished version of the judgment 4C.472/1997 from 16. April 1998, consideration 4a). The Swiss Federal Court set high standards to the characteristics of the common purpose in an unregistered partnership. Even a “common market presence” of a group of companies does not justify the establishment of an unregistered partnership.

In 2009 Porf. Dr. Peter Henry and Francesca Birchler replies in “Les groupes de sociétés sont (parfois) des sociétés simples – une duplique, in: Peter V. Kunz/Dorothea Herren/Thomas Cottier/René Matteotti, Festschrift für Roland von Büren, Basel 2009, p. 131 et seqq.” to von Büren in the form of a replica and defending their opinion. In this context see also the summary Nr. 42.

Summary

The essay is an answer to the essay by Henry Peter and Francesca Cavadini-Birchler about the question how to qualify the group of companies. They suggested applying the rules on unregistered partnerships (Art. 530 Code of Obligations) to groups of companies. In their opinion, the traditional approach, i.e. to consider companies that are members of a group as a legally independent corporation, leads to unsatisfactory and sometimes even troublesome results, especially in cases of insolvency within the group.

Replacing the traditional structure by a partnership approach should permit creative developments by members of the group individually or even of the group as a whole. In this article, von Büren and Huber strongly oppose this partnership approach, as they believe that groups of companies cannot be considered partnerships. In addition, they believe that the legal consequences of having groups of companies considered as a partnership are not acceptable.
Firstly because the characteristics of the unregistered partnerships according to Art. 530 OC do not fit the group of companies.

More specifically, there is no common purpose shared by the partners and also lacks a partnership agreement. The authors recognize that there could be a group of companies which are united by a “group of companies’ contract” and governed by a partnership agreement, but this is a rare concept in Switzerland.
Secondly, the existence of the group of companies as an unregistered partnership could bring undesirable and impractical consequences, e.g. an impracticable unanimity or the requirement of a decision on the distribution of consolidated profit.

Text

You can find a scan (PDF) of the original text here: Roland von Bueren – Warum der Konzern keine einfache Gesellschaft ist – eine Replik