Facts
Neidhart AG was granted a moratorium on 21 August 1996 and the composition agreement with assignment of assets was confirmed on 13 February 1997. The claim of the Compensation Fund of the Swiss Master Builders' Association for AHV/IV/EO and ALV contributions of CHF 147,060.25 was ranked in the third class in the collocation plan based on Art. 219 of the revised DEBA.
The High Court of the Canton of Lucerne upheld the plaintiff's appeal and instructed the administrators to rank the plaintiff's claim in the second class under Art. 219 of the former DEBA. The bankruptcy estate of Neidhart AG (defendant) appealed, requesting that the High Court's judgment be overturned and the collocation claim dismissed.
Considerations
The Federal Supreme Court dismissed the appeal, insofar as it entered into it. It states that in bankruptcy proceedings, which constitute a form of enforcement substitute, the granting of the moratorium and not the approval of the composition agreement is decisive for the applicability of the previous or the new privilege order.
The Federal Supreme Court justifies this by the fact that the granting of the moratorium, which opens the proceedings, has the same effects as the opening of bankruptcy and the execution of attachment. For this reason, the…