Assumption of Assets and Liabilities as Universal Succession

Facts

In 1977, Roto-Frank AG intended to build an office and commercial building in Zurich-Altstetten. It transferred the execution of the construction work to the Mockenwies Construction Cooperative as the general contractor. Later, Roto-Frank AG withdrew from the contract, whereupon the Mockenwies Construction Cooperative filed a claim for damages.

In the course of the proceedings, the Mockenwies Construction Cooperative was transformed into Mockenwies Bau AG. The Federal Court therefore had to decide whether Mockenwies Bau AG would enter the proceedings as the universal successor of the Construction Cooperative.

Considerations

Pursuant to Article 17, paragraph 3 of the Federal Act on Civil Procedure before the Federal Court, a universal successor enters the federal court proceedings regardless of the consent of the opposing party. Since, according to the commercial register entry, Mockenwies Bau AG has taken over the assets and liabilities of the Mockenwies Construction Cooperative, it is the universal successor and has thus entered the proceedings.

The defendant disputed that Mockenwies Bau AG had taken over all the assets, but was unable to prove this. Therefore, Mockenwies Bau AG has entered…