Facts
The shares of Immo-Primo AG belonged to the Hisa-National investment fund, which was managed by Hisa-Verwaltungs AG. On March 14, 1968, the Swiss Federal Banking Commission revoked the authorization of Hisa-Verwaltungs AG to manage the investment fund, as it had repeatedly and grossly violated its contractual and legal obligations. As a result, bankruptcy proceedings were opened against the assets of Hisa-Verwaltungs AG.
By contract and supplementary agreement dated October 31, 1963, Immo-Primo AG as the principal commissioned Grunda AG, whose sole director was Alfred Roth, as the general contractor for the construction of a residential high-rise and office building in St. Margrethen. On January 23, 1967, Grunda AG assigned a claim of CHF 250,000 against Immo-Primo AG to Bank Fellinger AG.
On March 21, 1968, Bank Fellinger AG reassigned the claim of CHF 250,000 to Grunda AG. On March 18, 1968, Grunda AG initiated debt collection proceedings against Immo-Primo AG for CHF 325,000 and obtained provisional debt enforcement on October 10, 1968 for CHF 250,000.
Immo-Primo AG filed a lawsuit with the Commercial Court of the Canton of Zurich against Grunda AG for the denial of the claim.
Considerations
The Federal Supreme Court states that the denial of claim lawsuit is not intended to review the debt enforcement decision, but to assess whether the claim existed and was due at the time the payment order was issued. For this, it is not necessary that the defendant was the creditor of the disputed claim at the time of the debt collection, but it is sufficient if it became so after the issuance of the payment order by way of reassignment.
Since the defendant as the general contractor, through its sole director Roth, simultaneously acted as an organ and common representative of the plaintiff, the acknowledgment of debt signed by Roth and Loosli on behalf of the plaintiff on January 23, 1968 is…