Refusal to offset a tenant's claim with unpaid rent in the landlord's bankruptcy

Facts

The dispute opposes J. Elmer Autokurier-Service (the tenant) to Gross Immobilien AG in liquidation (the landlord). The tenant paid a deposit of 15,000 Swiss francs in April 1994, which the landlord did not deposit in accordance with the law. The landlord was declared bankrupt on July 29, 1997. The tenant terminated the lease in February 1998. The landlord claimed 23,230.10 Swiss francs from the tenant for unpaid rent after the opening of bankruptcy. The tenant requested to offset this amount with the deposit he had paid.

The Baden district court authorized the offset, but the Argovia cantonal court rejected this request. The tenant appealed to the Federal Court, which rejected his appeal.

Considerations

The Federal Court considered that Article 213, paragraph 2, number 2, of the Debt Enforcement and Bankruptcy Act (DEBA) prohibited the offset of the tenant's claim with the unpaid rent, as the tenant had become a debtor of the estate after the opening of bankruptcy.

The Federal Court also examined whether the tenant could claim the deposit as an asset that was not part of the estate. However, it found that the deposit had not been deposited in accordance with the law and that the tenant could not claim a right of separation.

Furthermore, the Federal Court considered that the responsibility for depositing…