Facts
The SAir Group (hereinafter referred to as SAir or the appellant) received a working capital credit line of 100 million Swiss francs from the Z. Bank (hereinafter referred to as Z. Bank or the respondent) from 1998 onwards. The loan was extended several times and reduced to 80 million Swiss francs in the fall of 1999. On May 25, 2001, there was a final extension until August 29, 2001. After that, the Z. Bank refused a further extension of the credit, whereupon SAir repaid the amount of 80 million Swiss francs plus interest of 909,777.80 Swiss francs on August 29, 2001.
On October 5, 2001, SAir was granted provisional deferment of bankruptcy, which was later converted into a definitive one. On June 20, 2003, the composition agreement with assignment of assets dated June 26, 2002 was judicially confirmed.
With a claim dated January 23, 2006, SAir demanded from the Z. Bank, based on Art. 288 of the Federal Debt Enforcement and Bankruptcy Act (SchKG), the payment of 80,909,777.80 Swiss francs plus interest. The Commercial Court of the Canton of Zurich dismissed the claim on May 13, 2008.
Considerations
The Federal Supreme Court considers SAir's appeal to be justified. It finds that the repayment of the loan shortly before the deferment of bankruptcy impaired the enforcement rights of the other creditors.
Regarding SAir's intention to cause harm, the Federal Supreme Court concludes that the responsible bodies of SAir, given the dramatic financial situation, in particular the imminent illiquidity, could and should have foreseen that as a result of the loan repayment, the other creditors would suffer damage. At the very…