Facts
On June 30, 1983, [G.] rented a garage from [A. AG], of which he was the majority shareholder, for a monthly rent of 3,000 Swiss francs, including ancillary costs. The parties agreed that the tenant could set off the rent against his current account claim against [A. AG], to the extent that he had a credit balance. On March 22, 1984, A. AG's bankruptcy was declared and [G.] was evicted from the rented premises under Article 265 of the Code of Obligations. The summary court granted the bankruptcy estate a provisional summary judgment for 33,000 Swiss francs, corresponding to the rent for the months of August 1984 to June 1985.
The tenant contested this decision, arguing that the cantonal court had violated federal law by rejecting the set-off of the rent claim with his current account claim. The tenant had indeed declared that he would set off all unpaid rent during the term of the lease against his current account claim.
Considerations
The Federal Court examined the question of whether set-off of claims was possible after the opening of the landlord's bankruptcy. It recalled that, in the case of a lease, only the alienation of the leased property, within the meaning of Article 259 of the Code of Obligations, constitutes a modification of the lease relationship.
The Court also emphasized that, in the context of ongoing obligations, the rent claim arises after the expiration or commencement of each payment term. Consequently, the opening of bankruptcy entails a change in the legal competence regarding the creditor, which excludes set-off under Article 213 paragraph 2 number 2 of the DEBA.
The Court further considered…