Facts
The case concerns a legal dispute between the trustee of Büterra-Immobilien AG, Dr. Max Muri, and the attorney Dr. Max Lebedkin. Dr. Lebedkin was commissioned by Büterra-Immobilien AG to collect the proceeds from the sale of a property. After deducting certain payments, he was left with CHF 68,527.50, which was seized by the Handelsbank Luzern AG. As part of a settlement, Büterra-Immobilien AG assigned the claim against Dr. Lebedkin fiduciary to Dr. Muri.
Dr. Lebedkin wanted to offset his claims for reimbursement of a security deposit and fees for the defense of the sole shareholder of Büterra-Immobilien AG, Adolf Bürgisser, against the company's claim against him. Dr. Muri opposed this offsetting.
Considerations
The Federal Court decided that the offsetting is not permissible. While defenses that stood against the claim of the assignor can also be asserted against the acquirer, offsetting requires that two persons owe each other something. However, the claim that Dr. Lebedkin wants to offset is not against Büterra-Immobilien AG, but against its sole shareholder Bürgisser.
The Federal Court explains that the corporation must be treated as a separate legal entity even if there is a sole shareholder. Its assets and liabilities do not merge with those of the shareholder. Therefore, Dr. Lebedkin cannot offset his claim against Bürgisser…