Der Aktionärbindungsvertrag: Einfache Gesellschaft oder Innominatvertrag?

The present article shows that shareholders agreements are not as of necessity general partnership agreements. As a rule they are rather innominate contracts for which the same rules apply as for nominate contracts, in particular re the questions of consensus, interpretation and amendments. In this respect the real will of the parties is relevant in the first place and only in the second place the hypothetical will of the parties. As a source of inspiration for the «establishment» of the ­hypothetical will of the parties the non-mandatory law is relevant. That non-mandatory law can be the non-­mandatory law of the general partnership. Such law is, however, in most instances unsuitable. The non-mandatory law of the general part of the Code of Obligations (CO) provides in general more suitable answers, like the provisions of art. 82 CO or art. 107–109 CO. The fact that shareholders agreements are innominate contracts and not as of necessity general partnership agreements is also…