Facts
On January 11, 1972, the Bern and Surrounding Area Deep Freeze Association (TKV) was founded in Bern as an association within the meaning of Art. 60 of the Swiss Civil Code (ZGB). The TKV operated a significant trade in meat, meat products, and deep-freeze equipment and opened four butcher's shop branches. On January 29, 1973, the TKV filed for bankruptcy with the Bankruptcy Judge in Bern, whereupon the bankruptcy over the TKV was opened on January 31, 1973.
The Livestock and Meat Trading AG (VFH), a creditor of the TKV, filed a complaint with the supervisory authority, requesting that the bankruptcy be declared null and void. The supervisory authority granted the complaint and lifted the bankruptcy.
The TKV then filed an appeal to the Federal Supreme Court, requesting that the decision of the supervisory authority be overturned and that the Bankruptcy Office Bern be instructed to continue the bankruptcy proceedings.
Considerations
The Federal Supreme Court states that the TKV, as an association within the meaning of Art. 60 ZGB, is to be regarded as capable of being a party to proceedings and of taking legal action, as the subject matter of the proceedings is precisely the question of its legal capacity.
While it is questionable whether the bankruptcy authorities are authorized to review the legality of a bankruptcy decision, such a power of review - if at all - would only exist if the bankruptcy decision were manifestly illegal. This is not the case here, as the bankruptcy…