Landlord's Right of Retention in the Tenant's Bankruptcy

Facts

On 29 October 1974, Michael Jeger, as landlord, and Wohnkomfort AG, as tenant, entered into a lease agreement for commercial premises in Basel. The agreement was concluded for a period of five years, with a start date of 15 September 1974 and an end date of 30 September 1979. The monthly rent was 6,000 Swiss francs, payable in advance, as well as additional costs. The tenant became insolvent as of 1 December 1974 and was declared bankrupt on 17 June 1975. The bankruptcy administration refused to take over the lease agreement and vacated the premises at the end of July 1975 to enable the landlord to relet them quickly. The landlord maintained the agreement and sought to find a new tenant. In the context of the bankruptcy, he asserted a rent claim secured by a right of retention of 115,009.35 Swiss francs, as well as an unsecured claim for damages of 307,467.05 Swiss francs.

The bankruptcy administration admitted a rent claim secured by a right of retention of 58,083.35 Swiss francs, corresponding to the rent and costs for the period from 1 December 1974 to 31 July 1975, and rejected the remainder of the rent claim. The landlord contested this decision and brought an action to challenge the distribution plan.

Considerations

The disputed issue concerned the scope of the landlord's right of retention in the tenant's bankruptcy. The landlord argued that his right of retention extended to the rent for the period up to November 1975, while the bankruptcy administration argued that the lease agreement had been terminated due to its refusal to take it over.

The Federal Court examined the applicable legal provisions, in particular Article 272 of the Code of Obligations (CO) and Article 211 of the DEBA. It considered that the landlord's right of retention could only be invoked for rent claims and not for compensation claims.

The Federal Court also examined the question of whether the bankruptcy administration had the right to terminate the lease agreement under Article 211 paragraph 2 DEBA. It considered that this provision…