Facts
The case concerns a composition agreement with assignment of assets of B. AG. The Compensation Fund of the Swiss Hotel Association had claims for damages against B. AG pursuant to Art. 52 AHVG and Art. 82 para. 1 AHVV. The District Court Committee confirmed the composition agreement on April 23, 1982. When the collocation plan was filed from September 25 to October 5, 1982, the amount of the damage could not be precisely determined due to the uncertain dividend from the estate. The liquidator informed the Compensation Fund of the uncovered amount of its claims only on August 15, 1986.
Considerations
The Federal Court decided that the Compensation Fund must structure its damage compensation order in such a way that the defendants are obliged to replace the entire amount corresponding to the claim for damages in exchange for the assignment of the estate dividend. This also applies to cases of composition agreements with assignment of assets, as the factual and legal situation here does not differ significantly from bankruptcy cases.
In the present case, however, it appears unlikely that the Compensation Fund could have been aware of the damage at the time of filing the collocation plan. At that time, it was still allowed to assume that…