Facts
The appellants, Dr. René Schmid, Ristaro GmbH and Smith + Spencer Ass. Ltd., had been assigned the right to conduct proceedings in the arbitration proceedings of Josef Müller AG against the bankrupt party in the bankruptcy of Garamond Druck AG. On August 7, 1980, they informed the bankruptcy office that they were "waiving their claims, subject to continued set-off". Thereupon, the bankruptcy office removed the claims from the collocation plan. The bankruptcy office later informed the chairman of the arbitration tribunal that the appellants no longer had the status of creditors with regard to the claims originally admitted to the collocation plan and were therefore excluded from pursuing the rights of the debtor under Art. 260 of the Federal Debt Enforcement and Bankruptcy Act (SchKG).
The two cantonal supervisory authorities dismissed the appeals of the appellants against these decisions. The appellants filed an appeal to the Federal Supreme Court, requesting that they be allowed to retain the right to conduct proceedings.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that the right to conduct proceedings under Art. 260 SchKG is an ancillary right of the bankruptcy claim, which follows the fate of this claim in accordance with Art. 170 of the Swiss Code of Obligations (OR). With the extinction of the bankruptcy claim through waiver, the right to conduct proceedings also lapses.
The appellants had undisputedly waived their collated claims against the bankruptcy estate. Thereby, they lost their status as bankruptcy creditors and the right to assert the claims associated with this…