Facts
Kormann operated a furniture carpentry business and ran into payment difficulties. To ensure an initial repayment installment, Kormann's father-in-law Soltermann enabled Kormann to obtain a loan through a joint and several guarantee and a bill of exchange guarantee. In return, Kormann transferred a mortgage bond to Soltermann. Later, Soltermann assigned this mortgage bond at full value to the Spar- und Leihkasse Münsingen, to whom he owed a total of 19,919 francs from the guarantees. In the meantime, Kormann had been declared bankrupt.
One of Kormann's creditors, Bühlmann, filed an application with the bankruptcy office for the subsequent realization of the avoidance claim against Soltermann and demanded the assignment of this claim. The bankruptcy office waived independent enforcement, whereupon Bühlmann and three other creditors filed an avoidance action against Soltermann.
Considerations
The Federal Court upheld the judgment of the Court of Appeal, according to which Soltermann must reimburse not only the value of the mortgage bond but also the interest received from it until default. The majority of Swiss legal doctrine denies an obligation to return the profits obtained up to the time of default, but the Federal Court does not follow this view.
The purpose of the avoidance action, to restore the debtor's assets, requires that the defendant in the avoidance action generally does not bear the risk of accidental depreciation or…