Facts
In 1992, Banque LBLux S.A. granted Swissair a loan of 20 million Swiss francs, which was to be paid interest at an annual rate of 7 ¾ %. On September 28, 2001, SAir Group AG made the due interest payment of 1,545,694.44 Swiss francs. After the provisional moratorium was approved the following day, which was later converted into a definitive one, the IG Swissair-Obligationäre GmbH as the assignee creditor filed a claim for the reclamation of this interest payment.
The Commercial Court of the Canton of Zurich dismissed the claim, whereupon the IG filed an appeal with the Federal Supreme Court. The Federal Supreme Court also dismissed the appeal.
Considerations
The Federal Supreme Court states that the avoidance action under Art. 288 DEBA is an exceptional case that must be applied restrictively, as it serves the equal treatment of creditors. However, equal treatment must not be an absolute maxim or an end in itself, as the debtor must be able to engage in normal business activities in difficult times.
The decisive factor in assessing the detriment to creditors is whether the other creditors would have…