Offsetting of liability claims of the employee welfare foundation against beneficiary claims

Facts

In the course of the liquidation of the employee welfare foundation of T. AG, the foundation board prepared a plan for the distribution of the foundation's assets to the beneficiaries on August 6, 1979, which was approved by the District Council of Zurich on September 6, 1979. This plan excluded G. and [S.] from the distribution. By decision of February 6, 1980, the Government Council of the Canton of Zurich dismissed an appeal by these two beneficiaries. It held that the foundation was entitled to offset its liability claims against [S.], as a former member of the foundation board, with his beneficiary claims.

Considerations

The Federal Supreme Court first dealt with the fundamental question of whether an employee welfare institution may offset the claims of its beneficiaries against its counterclaims. It concluded that such an offset is permissible, especially when the foundation, as in the present case, is funded solely by the employer.

The Federal Supreme Court stated that the legislator had expressly excluded the assignment and pledging, but not the offsetting, of the benefits of the employee welfare institution. Even a wage claim may be offset against counterclaims of the employer, insofar as it exceeds the subsistence minimum. Under these circumstances, it is not…