Rejection of the Liability for Damages of the Sole Shareholder and Director of a Corporation towards the Compensation Fund

Facts

The appellant B. was the Chairman of the Board of Directors, Director, and sole shareholder of the company B. AG, which was declared bankrupt on May 18, 1977. The Compensation Fund AGRAPI demanded from B. the reimbursement of approximately CHF 75,000 in parity-based social security contributions that had not been paid to the Compensation Fund by the company. The cantonal Insurance Court had upheld the Compensation Fund's claim, as B. had grossly negligently failed to pay the contributions.

Considerations

However, the Federal Insurance Court concluded that B. was not liable for damages despite the non-payment of the contributions. While it was established that B. had intentionally not paid the contributions on time, the circumstances had to be taken into account: B. had made a genuine effort to maintain the business and initially satisfied the essential claims of employees and suppliers. He was allowed to hope that he could later settle the contributions to the…