Facts
On June 29, 2000, the sole proprietorship Metallbau E.X. was declared bankrupt. Metallbau X. GmbH (the defendant) then took over the inventory of the sole proprietorship for the purpose of continuing the business operations from the bankruptcy estate. The Public Unemployment Insurance Fund of the Canton of Solothurn (the plaintiff) claimed that the defendant was jointly and severally liable under Art. 333 para. 3 CO for the wage claims that had become due before the takeover. However, the lower court dismissed the claim.
Considerations
The Federal Supreme Court held that joint and several liability of the acquirer under Art. 333 para. 3 CO does not apply in the case of bankruptcy. While under Art. 333 para. 1 CO the employment relationship is transferred to the acquirer upon a business takeover, the joint and several liability under para. 3 is not linked to the legal takeover of assets and liabilities, but to the actual continuation of the business. In the case of bankruptcy, the proceeds from the liquidation of the business serve to satisfy the bankruptcy creditors, so the legislator did not intend to create an imperative joint and several liability of the acquirer for wage claims that had become due before the takeover when revising the law in 1993.
Joint and several liability would significantly impede or even prevent business takeovers from the bankruptcy estate, which would be contrary to the purpose of improving employee protection pursued by the 1993 revision. Moreover, such liability would be inconsistent with the system, as it would result in a privileging of the transferred employees over other…