Challenge to a loan repayment under Art. 288 DEBA

Facts

On 25 October 1965, bankruptcy was declared against IBZ Finanz AG. The Wirtschaftsbank Zürich, one of the creditors, brought a revocation action against Lüssi, another creditor, to obtain repayment of Fr. 145'000.--, an amount that IBZ had paid to Lüssi in April and May 1965. The Wirtschaftsbank Zürich based its claim on Art. 288 DEBA, which allows creditors to challenge acts of the debtor that harm their interests.

The Zurich Cantonal Court dismissed the claim, considering that IBZ's financial situation had not deteriorated between the time it contracted the loan and the time it repaid it. The Wirtschaftsbank Zürich appealed to the Federal Tribunal.

Considerations

1. The disputed value

The disputed value is determined by the amount claimed, which is Fr. 145'000.--. This amount exceeds the required value for an appeal to the Federal Tribunal.

2. The revocation action

The revocation action is subject to the objective condition that the challenged act of the debtor harms the creditors or some of them. This condition is presumed in favor of creditors holding a certificate of deficiency of assets and the bankruptcy estate, but the defendant in the revocation action may provide counter-evidence.

3. Harm to creditors

Harm to creditors is a necessary condition for the revocation action. Case law and doctrine consider that harm is presumed in favor of creditors holding a certificate of deficiency of assets and the bankruptcy estate. However, the defendant in the revocation action may prove that the challenged act did not harm the creditors.

4. Repayment of a loan

Repayment of a loan made using the last resources of a…