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- Art. 734f CO
- Art. 785 CO
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- Art. 787 CO
- Art. 788 CO
- Art. 795 CO
- Art. 795a CO
- Art. 795b CO
- Art. 795c CO
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
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- Art. 1 IMAC
- Art. 1a IMAC
- Art. 3 para. 1 and 2 IMAC
- Art. 8 IMAC
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- Art. 11b IMAC
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- Art. 32 IMAC
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- Art. 80d IMAC
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- Art. 80k IMAC
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 4 FADP
- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
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- Art. 28 FADP
- Art. 29 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
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- Art. 40 FADP
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- Art. 42 FADP
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- Art. 44a FADP
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- Art. 47 FADP
- Art. 47a FADP
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- Art. 49 FADP
- Art. 50 FADP
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- Art. 55 FADP
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- Art. 60 FADP
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- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 1 CCC (Convention on Cybercrime)
- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 9 AMLA
- Art. 11 AMLA
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
- Art. 28 AMLA
- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 33 AMLA
- Art. 34 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
BANKING ACT
- I. General Remarks and Systematic Analysis
- II. Requirements for Reduction or Cancellation
- III. Relationship to Capital Reduction
- IV. Further Questions of Application
- Bibliography
I. General Remarks and Systematic Analysis
1 Art. 795c of the CO sets forth the conditions under which a statutory obligation to make additional contributions may be reduced or waived. The provision serves to protect creditors and is intended to prevent the company from eliminating additional contribution obligations precisely during a period of financial strain, when such obligations are of particular importance as a liability-like substitute for equity capital. Although creditors may not assert any direct claims to demand such additional contributions—the obligation applies exclusively to the internal relationship between the company and its shareholders—a capital contribution obligation published in the Commercial Register (para. 73(1)(j) CRO) may nevertheless indirectly serve as an indicator of creditworthiness. In practice, it signals that the shareholders are prepared to provide additional funds if necessary. This can positively influence the risk assessment—particularly when granting loans or entering into long-term obligations.
2 Against this backdrop, the obligation to make additional contributions serves a certain confidence-building function. If it is waived in a critical economic situation, this may disappoint creditors in their assessment of the company’s financial soundness—although this does not confer upon them any subjective right to the continued existence of the obligation. To address this tension, Art. 795c of the CO subjects the reduction to the removal of a substantive barrier (para. 1) as well as to a strictly formal procedure modeled after the capital protection provisions governing capital reductions (para. 2 in conjunction with Art. 782 para. 4 CO and Art. 653j et seq. CO) . Capital markets law provisions do not apply in this context: According to the express intent of the legislature, the GmbH is not a legal form designed for raising equity capital via the capital markets.
II. Requirements for Reduction or Cancellation
A. Requirements under para. 1
3 Art. 795c para. 1 CO establishes a single, unconditional substantive requirement: the share capital and statutory reserves must be fully covered at the time of the resolution. Based on its wording, the provision does not distinguish between the grounds for calling in contributions under Art. 795a para. 2 CO on which the obligation to make additional contributions is based. It therefore applies equally to every reduction and every cancellation—even where the articles of incorporation link the call for additional contributions to a liquidity requirement (no. 2) or to a specified equity requirement (no. 3). Whether additional substantive barriers must be recognized is a separate issue; it is discussed below. The decisive factor is not a net loss on the balance sheet in the accounting sense, but rather the coverage of share capital and statutory reserves. These two concepts are distinct: A company may report a loss carried forward and yet have its share capital and statutory reserves fully covered, provided that free reserves absorb the loss. Nor is this referring to a capital loss within the meaning of Art. 725a of the CO, which only applies when half of the capital is uncovered; Art. 795c para. 1 of the CO applies much earlier. The term “statutory reserves” refers to the statutory capital reserve (Art. 671 CO) and the statutory profit reserve (Art. 672 CO), each in conjunction with Art. 801 CO; unrestricted reserves are not taken into account.
4 This mirrors Art. 795a para. 2 no. 1 CO, which is based on the same threshold: as long as the sum of share capital and statutory reserves is no longer fully covered, additional contributions may be demanded—consequently, the obligation may not be waived precisely in this situation. The provision serves as a preventive measure against the erosion of creditors’ interests through statutory restructuring measures during a crisis. Coverage must be verified on the basis of a balance sheet that complies with the requirements of Art. 958 et seq. CO and has been approved by the shareholders’ meeting (Art. 804 para. 2 no. 5 CO). If the balance sheet date is more than six months prior to the date of the resolution, interim financial statements must be prepared (Art. 653l CO, mutatis mutandis; Art. 960f CO). The release of hidden reserves is not expressly required; however, according to prevailing opinion, hidden discretionary reserves must be released prior to the reduction, unless objectively justified exceptions warrant their retention.
1. Requirements for Additional Capital Contributions under Art. 795a para. 2 no. 2 CO
5 The coverage requirement of Art. 795c para. 1 CO also applies here without restriction. However, it covers only the balance sheet position, not the liquidity position. According to the wording, a waiver therefore remains permissible even if the corporation is insolvent despite having formally covered share capital and covered statutory reserves—that is, precisely in the scenario in which Art. 795a para. 2 no. 2 CO would permit the demand for additional contributions. This gap in the legal assessment is the actual weakness of the provision.
6 Legal scholars therefore argue that a substantive restriction going beyond para. 1 should also be recognized for the reduction and waiver of additional contribution obligations within the meaning of no. 2. This view should be followed: As long as a relevant liquidity shortage exists and no alternative financing has been secured, the additional contribution obligation may not be waived. Otherwise, creditors’ interests could be jeopardized and fiduciary duties breached. An impermissible reduction or waiver may, in particular, give rise to liability for breach of duty under Art. 827 in conjunction with Art. 754 of the CO—especially if the company remains or becomes insolvent as a result of the elimination of the obligation to make additional contributions.
2. Requirements for Additional Contribution Obligations Under Para. 795a(2)(3) CO
7 In the case of additional contribution obligations under para. 795a(2)(3) CO, an explicit description of the purpose in the articles of incorporation is required. The demand for additional contributions earmarked for a specific purpose is subject to strict substantive requirements: It is permissible only if the specified purpose is objectively urgent and no reasonable alternative financing is available. Otherwise, there is a risk of a disproportionate burden, particularly on minority shareholders. An arbitrary or opportunistic exercise of this right would contradict the principle of the prudent exercise of rights (Art. 2 of the CC).
8 If this purpose is objectively achieved or abandoned—for example, because a planned acquisition is no longer being pursued—the enforceability of the obligation effectively ceases. Nevertheless, a formal reduction or cancellation of the obligation to make additional contributions may be necessary to establish legal clarity for shareholders and third parties and to ensure that the entry in the commercial register remains factually accurate. Here, too, the coverage requirement of Art. 795c para. 1 of the Swiss CO (OR) applies without restriction. In contrast, no additional substantive barrier is required—unlike in no. 2. The reason lies in the function of the purpose-specific obligation to make additional contributions: it is not a reactive restructuring measure, but rather a project-related financing option. If the statutory purpose ceases to exist, there is no interest worthy of protection in its continued existence that goes beyond what is already ensured by para. 1 and the procedure under para. 2.
B. Procedure under para. 2
9 The reduction or cancellation of a statutory obligation to make additional contributions constitutes an amendment to the articles of incorporation and must be resolved by the shareholders’ meeting, publicly notarized, and entered in the CRO (Art. 780 CO; Art. 73, para. 1, lit. j CRO). The law does not specify the required majority. Para. 808b(1) CO does not mention the reduction or elimination of the obligation to make additional contributions—nor does it mention the reduction of the share capital. Therefore, the absolute majority of the votes represented (Art. 808 CO) applies, unless the articles of incorporation provide otherwise (Art. 808b(2) CO). This solution requires explanation because the subsequent introduction or expansion of a call obligation under Art. 797 CO requires the consent of all affected shareholders. This asymmetry can be justified by the fact that the reduction relieves the shareholders of liability, and creditor protection is ensured not through the resolution quorum but through para. 1 and the procedure set forth in para. 2.
10 The principle of equal treatment (Art. 813 CO) must still be observed. If the obligation to make additional contributions is attached only to certain shares or is reduced only in part, unequal relief requires objective justification; otherwise, the resolution is voidable (Art. 808c CO in conjunction with Art. 706 para. 2 no. 3 CO).
11 Pursuant to Art. 795c para. 2 CO, the procedure is governed mutatis mutandis by the provisions on capital reduction (Art. 782 para. 4 in conjunction with Art. 653j et seq. CO). The reason for the requirement of a full protective procedure lies in the indirect creditor-protective effect of the obligation to make additional contributions: it strengthens equity, ensures the company’s continued existence, and thus indirectly contributes to the satisfaction of creditors’ claims. Accordingly, the provisions governing a simple amendment to the articles of incorporation are not sufficient—not even in the case of a merely partial reduction, for which the full procedure must also be carried out.
1. Application by analogy of the provisions on capital reduction
12 Art. 795c para. 2 CO refers by analogy to the provisions on ordinary capital reduction pursuant to Art. 782 para. 4 in conjunction with Art. 653j et seq. CO. It should be noted that the reduction or elimination of the obligation to make additional contributions does not constitute a capital reduction in the technical sense, but rather a modification of a statutory obligation of the shareholders to make contributions to the company, unrelated to the par value of the capital. The application of the capital reduction rules is therefore functional, not schematic. The application by analogy is limited to the ordinary capital reduction under Art. 653j–653o CO. The simplified procedure for eliminating a negative equity position (Art. 653p CO) is ruled out because it presupposes insufficient capital coverage—that is, precisely the situation that Art. 795c para. 1 CO excludes. Likewise, Art. 653q CO (reduction with simultaneous reinstatement) is not an option, since the obligation to make additional contributions does not involve any nominal capital that could be reinstated. A reduction within the capital band (Art. 653s et seq. CO) is not merely excluded by virtue of application by analogy: under current law, the GmbH does not have access to the capital band at all; it is not covered by the reference in Art. 782(4) CO.
2. Individual Procedural Steps
13 The proceeding is a creditor protection proceeding with constitutive effect. Specifically, it comprises:
(1) an interim financial statement, provided that the balance sheet date was more than six months prior to the date of the resolution (Art. 653l CO, applied by analogy);
(2) the call for claims through a one-time publication in the SHAB; creditors may, within 30 days of publication, file their claims and request security (Art. 653k, para. 1 and 2, CO, applied mutatis mutandis);
(3) an audit report from a state-supervised auditing firm or a licensed audit expert, based on the financial statements and the outcome of the call for claims (Art. 653m para. 1 CO, applied mutatis mutandis; Art. 55 para. 1 lit. c CRO);
(4) the resolution of the shareholders’ meeting in the form of a public document (Art. 653n CO, applied mutatis mutandis; Art. 780 CO);
(5) the certificate issued by the managing directors confirming compliance with the procedural requirements, specifying the underlying supporting documents (Art. 653o, para. 1 and 2 CO, applied mutatis mutandis);
(6) the application to the Commercial Register Office, accompanied by the supporting documents pursuant to Art. 81 in conjunction with Art. 77 and Art. 55 para. 1 of the CRO, i.e., the two public deeds, the audit confirmation, and the amended articles of association.
14 It remains unclear whether the forfeiture period under Art. 653j(4) OR applies by analogy, pursuant to which the resolution lapses if it is not filed for registration within six months. Since the reference in Art. 795c(2) OR covers the procedure as a whole and the time limit serves to ensure the validity of the audit confirmation, the answer to this question is in the affirmative. In practice, the deadline must be observed until it is clarified by the highest court. The 30-day period under Art. 653k(2) CO is decisive.
a. Notice of Debt in Particular
15 The notice of debt pursuant to Art. 795c of the Swiss Code of Obligations (OR) serves to inform creditors of the planned reduction or cancellation of the obligation to make additional contributions and to give them the opportunity to file their claims and, if necessary, to request security (see Art. 653k OR by analogy). The notice is published once in the SHAB; the deadline for filing claims and requesting security is 30 days from the date of publication (Art. 653k(2) CO). Additional direct notification of known creditors is permitted but not required. The obligation to provide security ceases if the company satisfies the claim or demonstrates that its satisfaction is not at risk; if an audit report is available, this is presumed (Art. 653k(3) CO).
16 Amstutz, Chappuis, and Gohari rightly question the rationale behind the call for claims under Art. 653k CO in the context of reducing or waiving the obligation to make additional contributions. While under stock corporation law the call for claims serves to secure existing creditor claims, this purpose is systematically missed in the case of additional capital contributions: These do not constitute creditor claims, but are purely internal obligations of the shareholders toward the company. It can be argued, however, that obligations to make additional contributions may, under certain circumstances, have an indirect protective effect on creditors by enabling the company to offset losses and stabilize its financial position—which in turn safeguards the fulfillment of creditors’ claims. This protective effect is, however, already guaranteed by the substantive limitation set forth in Art. 795c(1) of the Swiss Code of Obligations (OR). In the view expressed here, even an ongoing liquidity crunch precludes a reduction in capital. Against this backdrop, the call for claims appears dispensable in many cases.
17 A systematic comparison with Art. 795b CO does not, however, refute this finding; rather, it explains it. Art. 795b OR requires that the repayment of additional contributions be covered by freely disposable equity capital and thus by an amount in excess of the share capital and statutory reserves. Art. 795c(1) OR, by contrast, is satisfied with their full coverage, i.e., a zero balance. The substantive restriction under Art. 795b of the Swiss Code of Obligations (OR) is therefore stricter, not merely as strict. Added to this is the factual difference: Art. 795b OR concerns an actual outflow of funds, whereas Art. 795c OR concerns the permanent elimination of a claim without an outflow. The legislature has thus implemented a regulatory trade-off: where the substantive limit is weaker, it strengthens procedural safeguards, and vice versa. There can therefore be no question of an inconsistency between Art. 795b and Art. 795c of the Swiss Code of Obligations. Rather, criticism of the demand for payment must be based solely on the fact that the obligation to make additional contributions does not constitute a creditor’s claim within the meaning of Art. 653k of the Swiss Code of Obligations (OR), and that the demand for payment cannot achieve its regulatory objective—securing existing claims, the coverage of which is diminished by the measure—in the case of a purely intra-corporate obligation to perform. This objection stands on its own; de lege ferenda, a restriction to the audit confirmation should be considered.
b. Audit Confirmation in Particular
18 The audit confirmation under Art. 653m of the Swiss Code of Obligations (OR) is part of the protective mechanism in stock corporation law governing an ordinary capital reduction. It serves to ensure that the claims of known and registered creditors remain fully secured despite the planned reduction. The subject matter of the confirmation under Art. 653m(1) CO is exclusively the full coverage of creditors’ claims, based on the conclusion and outcome of the call for claims. This must be distinguished from the proof that the substantive requirement of Art. 795c(1) CO—the coverage of share capital and statutory reserves—is fulfilled. The law does not assign this proof to the audit expert; it is the responsibility of the managing directors and must be documented mutatis mutandis in the certificate of confirmation pursuant to Art. 653o CO. In practice, it is advisable to combine both statements in the same confirmation; legally, however, they constitute two separate subjects of audit. In the case of a company that has opted out, the audit regulations are again somewhat different (Art. 727a(2) CO in conjunction with Art. 818(1) CO). Such a company does not have an audit firm but must nevertheless engage a licensed audit expert for the procedure under Art. 795c CO. Conversely, any shareholder subject to a call for additional contributions may request an ordinary audit pursuant to Art. 818(2) CO. They are entitled to this right until the dissolution is entered in the Commercial Register; thereafter, it ceases to apply due to the absence of an obligation to make additional contributions. In the context of Art. 795c CO, this provision is applied only mutatis mutandis, which takes into account the fact that the obligation to make additional contributions has no direct external effect. It does not constitute an obligation to make a capital contribution, but rather an internal obligation within the partnership, the primary purpose of which is to stabilize the financial structure. It has only an indirect effect in protecting creditors.
19 The application mutatis mutandis of the provisions governing capital reductions thus requires both: the call for claims under Art. 653k of the Swiss Code of Obligations (OR) and the audit confirmation under Art. 653m OR. However, their informative content remains limited to creditor protection; the law does not provide for confirmation of the substantive requirement under Art. 795c(1) of the Swiss Code of Obligations (OR), and such confirmation may, at most, be included on a voluntary basis. The same approach applies de lege lata to earmarked additional contribution obligations under Art. 795a(2)(3) OR; whether this is appropriate is discussed below.
20 The parallel treatment with an ordinary capital reduction is mandated by law and must be followed de lege lata. Nor is it incoherent: as shown, the stricter procedure compensates for the weaker substantive safeguard compared to Art. 795b CO. The only point open to criticism remains the inclusion of the public notice of debt, the regulatory purpose of which falls flat in the case of an internal obligation. De lege ferenda, it would therefore be worth considering limiting Art. 795c(2) OR to the auditor’s report, notarization, and registration with the Commercial Register.
c. Registration with the Commercial Register in Particular
21 The articles of incorporation must be amended in any case, since both the reduction and the cancellation affect their basis. Art. 81 of the Commercial Register Ordinance (HRegV) expressly subjects the reduction and the cancellation of a statutory obligation to make additional contributions to the same procedure: Art. 77 HRegV applies mutatis mutandis, which in turn refers to Art. 55 HRegV. Therefore, in both cases, the following must be filed and submitted: the notarized document regarding the resolution of the shareholders’ meeting, the notarized document regarding the managing directors’ findings, the auditor’s report, and the amended articles of association (Art. 55(1)(a)–(d) HRegV, applied mutatis mutandis).
22 It would be incorrect to assume that a mere partial reduction is not subject to registration because, pursuant to Art. 73(1)(j) HRegV, the Commercial Register contains only a reference to the detailed description in the articles of association, but not the amount. First, Art. 81 of the Commercial Register Ordinance (HRegV) requires a filing for both procedures. Second, pursuant to Art. 73(1)(e) HRegV, the date of the articles of incorporation is a fact subject to registration; therefore, any amendment to the articles of incorporation necessarily triggers a filing and an entry in the commercial register.
23 With regard to the content of the commercial register entry, the list set forth in Art. 55(3) HRegV can be applied only to a limited extent, since neither a reduction amount nor a par value nor a number of shares is involved. Accordingly, the new date of the articles of association (Art. 73(1)(e) HRegV) must be entered, as well as—in the event of a complete repeal—the deletion of the reference pursuant to Art. 73(1)(j) HRegV. In the case of a mere partial reduction, the reference remains in place and only the date of the articles of association changes.
24 The Commercial Register Office verifies, within the framework of Art. 937 of the Swiss Code of Obligations (OR), whether the statutory requirements are met and the supporting documents are complete. If the notice of claims or the audit confirmation is missing, the application must be rejected. The Office does not independently verify the substantive requirement of Art. 795c(1) OR; it may rely on the certificate of determination and the audit confirmation.
3. Procedure for the Reduction and Waiver of Additional Contribution Obligations under Art. 795a(2)(2) CO
25 The procedure under paragraph 2 must be carried out regardless of the reason for the demand; Art. 795c(2) CO makes no distinction in this regard. For additional capital contribution obligations under Art. 795a(2)(2) OR, the same procedure therefore applies as in the basic case: interim financial statements where necessary, a call for claims with a 30-day filing period, an audit confirmation, dual notarization, and registration. In addition, there is the supplementary substantive restriction explained above: As long as a relevant liquidity shortage persists, a reduction or cancellation is not permitted, even if the share capital and statutory reserves are formally covered.
4. Procedure for the Reduction and Cancellation of Additional Capital Contribution Obligations under Art. 795a(2)(3) CO
26 Even in the case of earmarked additional contribution obligations under Art. 795a(2)(3) CO, Art. 795c(2) CO requires the full reduction procedure. This applies even if the purpose defined in the articles of incorporation has objectively ceased to exist and the obligation can no longer be enforced in practice.
27 In practice, it is questionable whether a call for claims or an audit confirmation still serves any functional purpose in such situations. The purpose-specific additional contribution obligation is intended as an instrument of internal financing and has no effect on third parties. With the cessation of the statutory purpose, the enforceability de facto ceases; the basis of liability is thus already devalued before a resolution to revoke the obligation has even been passed. Formal revocation consequently deprives creditors of nothing that a protective procedure could still secure—which also calls into question the utility of an audit confirmation. De lege lata, however, a waiver is ruled out: Dissolution cannot take place through a mere resolution under the articles of association without a call for claims and an audit confirmation. Art. 795c(1) and (2) of the Swiss Code of Obligations (OR) apply without exception and do not distinguish based on the grounds for enforcement. De lege ferenda, on the other hand, it would be worth considering waiving the call for claims and audit confirmation when the statutory purpose has objectively and demonstrably ceased to exist, and allowing dissolution through a simple amendment to the articles of incorporation. The principle of proportionality supports this: Without enforceability, the obligation no longer has any liability value that a creditor protection proceeding could secure.
III. Relationship to Capital Reduction
28 A particular issue arises when the company’s share capital is reduced. Since the obligation to make additional contributions is always based on shares (Art. 795 CO), the question arises as to whether—and to what extent—a capital reduction leads to an automatic adjustment of the obligation to make additional contributions.
29 If the obligation to make additional contributions is defined as a percentage of the par value of a share (e.g., “up to twice the par value”), an automatic reduction is sometimes assumed in the event of a reduction in par value: The ratio remains unchanged, and the obligation to make additional contributions decreases proportionally with the share capital.
30 If, on the other hand, the additional contribution obligation is formulated in absolute amounts (e.g., “CHF 10,000 per share”), no automatic adjustment occurs as a result of the capital reduction. Rather, a separate reduction of the additional contribution obligation is required through the formal procedure under Art. 795c of the Swiss Code of Obligations (OR). Otherwise, the additional liability base remains in full, which may make sense from the creditors’ perspective but could contradict the intent of the shareholders.
31 However, this distinction is only apparent. Even in the case of a percentage-based link, no automatic reduction occurs. The obligation to make additional contributions is based on a provision in the articles of association, the amendment of which is subject to specific requirements under Art. 795c of the Swiss Code of Obligations (OR); a tacit adjustment in the course of the capital reduction would amount to a circumvention of the creditor protection procedure. A separate resolution is therefore always required, following the procedure set forth in paragraph 2—even if the articles of incorporation expressly provide for such a linkage. The difference between a percentage-based and an absolute structure thus does not affect the procedure, but only the question of what amount the resolution to reduce capital must specify.
32 Furthermore, the mandatory upper limit set forth in Art. 795(2) of the Swiss Code of Obligations (OR) must be observed: The obligation to make additional contributions associated with a share may not exceed twice its par value. If the par value is reduced and the obligation to make additional contributions is defined as an absolute amount, it may subsequently exceed this limit. An obligation to adjust then arises regardless of the shareholders’ will. According to the interpretation of Art. 6 of the Transitional Provisions (SchlB) regarding the amendment of December 16, 2005—which provides that excessive additional contribution obligations under the previous law remain valid and can only be reduced through the procedure under Art. 795c of the Swiss Code of Obligations (OR)—the excess does not lapse ipso iure; rather, a resolution to reduce the amount is required through the ordinary procedure. In practice, this means that a reduction in par value and the adjustment of the obligation to make additional contributions must be coordinated.
33 Conversely, Article 782(3) of the Swiss Code of Obligations (OR) requires, for the reduction of share capital to eliminate a deficit resulting from losses, that the additional contributions stipulated in the articles of incorporation have been paid in full. Thus, in a company with a deficit, these two approaches are mutually exclusive: the obligation to make additional contributions cannot be eliminated because the share capital and statutory reserves are not covered (Art. 795c(1) CO); the deficit cannot be resolved in the balance sheet until the additional contributions have been paid (Art. 782(3) CO). This results in a mandatory sequence: demanding and receiving the additional contributions, followed by a capital reduction, and then, if applicable, a reduction or waiver of the obligation to make additional contributions. This requirement for prior payment prevents a company from evading an existing obligation to make additional contributions merely by adjusting its balance sheet.
IV. Further Questions of Application
A. Personal Scope of Application: Former Shareholders
34 Under Art. 795d(1) CO, the obligation to make additional contributions on the part of former shareholders continues for three years; according to paragraph 4, this period cannot be extended. Conversely, they benefit from a reduction or waiver pursuant to Art. 795c of the Swiss Code of Obligations (OR); the legislative materials expressly state this. The resolution thus has an effect beyond the current group of shareholders. The decisive factor is the date on which it takes effect, i.e., the date of entry in the Commercial Register; additional contributions that have already been demanded and have become due remain payable.
B. Transitional Provisions
35 Pursuant to Art. 6 of the Transitional Provisions (SchlB) to the amendment of December 16, 2005, additional capital contribution obligations under the previous law that exceed the upper limit set forth in Art. 795(2) CO remain valid; they may be reduced exclusively through the procedure set forth in Art. 795c CO. For companies incorporated before January 1, 2008, this is the most practically significant application of the provision.
C. Hidden Obligations to Make Additional Contributions
36 Under Art. 796(4) of the Swiss Code of Obligations (OR), statutory obligations to pay money or to provide other assets are subject to the provisions on additional contributions if no reasonable consideration is provided and the demand serves to meet equity capital requirements. Such functionally equivalent clauses are therefore also covered by Art. 795c OR: Their removal requires the full procedural process. The provision serves to prevent circumvention and must be taken into account when assessing amendments to the articles of association.
D. Legal Consequences of Procedural Defects
37 If the procedure under paragraph 2 is not followed, the resolution of the shareholders’ meeting is voidable under Art. 808c CO in conjunction with Art. 706 et seq. CO. Nullity may be considered under Art. 706b(3) CO to the extent that the resolution violates the provisions on capital protection. This is to be assumed in the case of a reduction or cancellation contrary to the substantive limit set forth in Art. 795c(1) CO; mere disregard of individual procedural steps under paragraph 2, by contrast, results in the resolution being subject to challenge. Registration in the Commercial Register does not cure the defect. If the managing directors breach their duties during the preparation or implementation, they are liable under Art. 827 in conjunction with Art. 754 OR; the same applies to the audit expert engaged (Art. 827 in conjunction with Art. 755 OR).
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