Facts
In the bankruptcy of Franz Moser in Zurich, the Bankruptcy Office Fluntern-Zurich commissioned the Debt Collection Office Eschenz to estimate and realize a riverbank parcel. The Debt Collection Office estimated the property on October 15, 1965 at CHF 74,000 and noted in the appraisal protocol that only about half of the area was available for construction. This remark was included in the encumbrance register. At the auction on August 28, 1967, Paul Helfenstein was awarded the bid for CHF 71,000.
Helfenstein filed a complaint against the award, requesting that it be revoked due to a fundamental error. He claimed that he had relied on the possibility of building on part of the property in his bid, but subsequently learned that the property could not be built on for forestry reasons.
The lower and upper cantonal supervisory authorities dismissed the complaint. Helfenstein appealed the decision of the upper cantonal supervisory authority to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the appellant rightly challenged the award through the complaint and appeal procedure under Art. 17 et seq. SchKG. He could also assert civil law grounds.
The remark about the possibility of construction was capable of influencing the auction, particularly the level of bids. Since this information was incorrect, the appellant was entitled to consider the buildability as a necessary basis for the auction purchase. The exclusion of the warranty obligation does not preclude this, as the…