Facts
X. was the sole signatory president of the foundation board of the employee welfare foundation Y. AG from May 1, 1971 to July 8, 1978. In 1977, the current account balance of the employee welfare foundation against the founding company Y. AG increased by CHF 145,695.--. On October 2, 1979, bankruptcy proceedings were opened against Y. AG, in which the employee welfare foundation filed a claim of CHF 301,083.35. Since it held X. responsible for the transactions that had led to the increase in the current account receivable in 1977, it demanded compensation from him for the extent of this loss.
In June 1981, the employee welfare foundation Y. AG sued X. for payment of CHF 75,695.-- plus interest. For the calculation of the claimed amount, it based itself on the aforementioned CHF 145,695.-- and deducted the vested benefits claim that would have been due to the defendant as its beneficiary.
Considerations
1. The Federal Supreme Court holds that the defendant is basically liable for damages. However, the calculation of the damages is disputed.
a) The Federal Supreme Court considers it appropriate that the defendant must reimburse the plaintiff the entire amount that was withdrawn from the bankrupt company, against assignment of the bankruptcy dividend. This will restore the plaintiff to the position it would have been in if the amount had not been withdrawn, and the defendant bears the risk of the uncertain bankruptcy dividend.
b) The Federal Supreme Court holds that a set-off of the compensation claims of the employee welfare…