Facts
In September 1983, the Bank granted a framework credit to X. AG, which was increased several times in the following years and amounted to 20 million Swiss francs in November 1989. To secure this credit, the parties agreed on the assignment of claims, which also included the claims of Y. AG against X. AG's lessees.
At the end of May 1991, Y. AG informed its creditors about liquidity problems. To avert an impending bankruptcy, the affected financial institutions agreed on a private composition proceeding and a silent liquidation of Y. AG. X. AG itself ran into financial difficulties, and on April 13, 1992, it was granted a moratorium.
The Bank filed a lawsuit with the Commercial Court of the Canton of Bern against X. AG. With a declaratory claim, the Bank demanded that 73.681% of the share attributable to X. AG in the private composition of Y. AG be separated from the composition of X. AG in its favor. Furthermore, it demanded the payment of its alleged share in individual interim payments that had been made to accounts of X. AG at third-party banks.
Considerations
The Federal Court upheld the appeal of X. AG, insofar as it could be entered, set aside the contested judgment, and remanded the case to the lower instance for further clarification and a new decision regarding the counterclaim.
The Federal Court concluded that the defendant (X. AG) did not act on behalf and on account of the plaintiff (Bank) when it participated in the private composition of Y. AG and thereby acquired claims on the respective interim payments. This…