Money over the Internet
The crowdfunding market is growing every year in Switzerland and is scoring high in terms of growth. Many millions of francs have been raised through crowdfunding in recent years. Almost half of this went into new companies.
How crowdfunding is organized is shown by the example of the "marketplace miteinander-erfolgreich.ch"which is operated by Basellandschaftliche Kantonalbank in cooperation with Swisscom IT Services AG. Natural persons and legal entities can present and support projects on the "Marketplace". As the "marketplace operator", the Cantonal Bank considers itself to be a broker within the meaning of Art. 412 ff. OR. This means that it offers the opportunity to conclude a contract in return for remuneration. In general, the provisions on the simple contract apply to the brokerage contract.
Innominate contract with platform service provider
A person or a company wants to finance a project - depending on the situation he can be called project provider, project organizer, project initiator or business manager. He looks for an Internet platform that presents the project and concludes a contract with it, usually based on GTC.
The platform service provider verifies the identity and seriousness of the project organizer. Then he has to put the project on the Internet, establish contact between the sponsors and the project organizer and organize the payment processing correctly. For this purpose, the platform must be permanently accessible. The operator must ensure data protection and data security in accordance with the latest technical standards.
As with the hosting contract, the agreement with the platform operator cannot normally be regarded solely as a brokerage contract or as an order. In most cases, it is likely to be a mixed contract with elements of rental law as well as contract for work and services and contract law.
Project providers and platform operators should observe the Anti-Money Laundering Act and the Ordinance on the Professional Practice of Financial Intermediation (VBF) as soon as they operate crowdfunding on a commercial basis. According to these, one is already considered a professional financial intermediary if one achieves gross proceeds of more than 20,000 Swiss francs per calendar year and maintains business relationships with more than 20 contractual parties that are not limited to a one-time activity.
Loan, donation or participation?
The sponsors, in case of company foundations investors, conclude a contract with the project organizer. He commits himself to use the paid contributions correctly. Depending on the situation, they can be considered as loans or participations, or even as a gift with the condition that the project is carried out. Often a quid pro quo is offered for the sponsor's contribution, it should be precisely defined.
Some platform operators pay attention to guarantees for sponsors, for example, the German platform Startnext stipulates that donors get their money back if the project is not carried out, or that the money is collected by direct debit only after enough money has been raised for the project.
The lottery law and the associated ordinance (LG Art. 1) apply to the drawing of prizes. Lotteries are prohibited, for which fines or imprisonment are threatened. In the case of projects for non-profit or charitable purposes, prize draws are possible, with the approval of the competent cantonal authority.
Important: Sponsors must pay attention to which law applies in the case of international providers, for example EU or US law. Consultation is recommended for investments of higher amounts.
Regulate liability!
For a crowdfundig community, the law for simple companies may apply, which is practically applied to many different joint projects. Unless otherwise agreed, according to CO Art. 533, each shareholder has an equal share in profit and loss regardless of the type and size of his contribution. Therefore, in crowdfunding projects, the liability of the sponsors for the project, or towards third parties, should be excluded or limited to the amount paid in - for safety's sake, even if the contributions are considered a gift or a loan. According to OR Art. 100, the platform operator and the project provider are liable at least for intent or gross negligence. However, such a limitation of liability does not make a good impression, which is why the project provider should be prepared to be liable for negligence towards the sponsors.
Company formations
If commercial companies are founded and partners are sought by means of crowdfunding, the provisions of the CO on the relevant form of company must be observed. In the case of a limited partnership, the external funders can act as limited partners, for which a minimum amount should be specified. They are liable only up to the amount of the limited partnership sum. Partners with unlimited liability can only be natural persons, but limited partners can also be legal entities and commercial companies. If one establishes a limited liability company, joint-stock company or cooperative with crowdfunding, the corresponding law must be taken into account. For example, when tendering shares and bonds, the provisions of OR Art. 652a on the issue prospectus apply.
Successful together http://bit.ly/1sl1JMb
crowdfunding.com http://bit.ly/29F1HBL
swisscom http://bit.ly/1L44u0Y
