Facts
Bank Y., a limited partnership, was placed in composition liquidation by judgment of November 23, 1978. On April 27, 1982, the liquidators invited the creditors to assign their potential claims for damages against the auditing firm X. SA, the institution responsible for the bank's audit, so that the bank in liquidation could assert them on behalf of the estate and at its own expense. Twenty-five creditors assigned their claims to the bank in liquidation.
The bank in liquidation then brought an action for damages against X. SA on behalf of the assigning creditors. The Federal Supreme Court had to examine the validity of these assignments of claims.
Considerations
According to the Federal Supreme Court, the assignments of claims made in this case are null and void. Indeed, the established case law in ATF 106 Ib 357 provides that the creditors' claims for damages against third parties responsible for the damage suffered do not form part of the liquidation estate, but belong to the creditors themselves. The bank in liquidation cannot therefore assert these claims.
Although the creditors have assigned their rights to the bank in liquidation, these assignments are null and void because they are intended to circumvent the aforementioned case law and to allow the bank to exercise rights that do…