Facts
After the bankruptcy of [D. AG] had been opened, the competent bankruptcy office assigned the claims for liability of the bankruptcy estate to the colloquial creditors B. AG and C. AG pursuant to Art. 260 DEBA. The summary bankruptcy proceedings were declared closed by judgment of 12 November 2014. On 17 November 2014, [D. AG] in liquidation was deleted ex officio from the commercial register. Only after the deletion of the company, the two creditors as the sole assignees filed a claim against A. for liability under corporate law at the District Court of Münchwilen on 17 November 2015.
Considerations
The Federal Supreme Court dismisses the appeal filed by the defendant against the decisions of the Cantonal Court, insofar as it enters into the matter. It holds that the deletion of the bankrupt company from the commercial register has no impact on the active legitimacy of the assignee creditors under Art. 260 DEBA. The deletion of the company does not lead to the extinction of the claims in its name, as these can be realized within the framework of a subsequent bankruptcy without re-registration of the company. For the enforcement of the claims assigned under Art. 260 DEBA, a re-registration of the company is not required.
The Federal Supreme Court bases its decision on the fact that the assignment under Art. 260 DEBA is a sui generis institute of enforcement and procedural law, by which the power to conduct proceedings is transferred. Although the assignee creditors act in their own name, at their own risk and for their own account, they do not become the holders of the assigned claim through the assignment. Furthermore, Art. 260 DEBA serves the purpose of making the assets belonging to the estate…