Setoff in Bankruptcy: Admissibility of Setoff of a Claim Established Before the Opening of Bankruptcy Proceedings but Only Due Thereafter

Facts

The case concerns a dispute between the bankruptcy estate of Alduc S.A. and Bernard Fer, a debtor of the company. Fer owed 246,184.70 francs to Alduc S.A. and had also acted as a guarantor for the company's current account with UBS in the amount of 450,000 francs. On June 24, 1976, shortly before Alduc S.A. filed for bankruptcy, Fer instructed UBS to debit 246,184.70 francs from his account and credit it to the company's account. Fer wanted to settle his debt to Alduc S.A. and reduce his guarantee obligation. Alduc S.A. was declared insolvent on July 9, 1976. The bankruptcy estate then demanded that Fer pay the 246,184.70 francs. Fer claimed that he had paid this amount as a guarantor to UBS and had therefore entered into the bank's rights. He declared that he was setting off his claim against the bankruptcy estate.

Considerations

The Federal Court ruled in favor of Fer. It stated that Fer had entered into the rights of UBS through his payment. Although his claim against the bankruptcy estate was not yet due at the time of the opening of bankruptcy proceedings, he could set it off against the bankruptcy estate's claim in accordance with Art. 123 para. 1 CO. Art. 213 para. 2 no. 1 DEBA, which excludes the setoff of claims that became due after the opening of bankruptcy proceedings, was not applicable here, as Fer's claim had already been established before the opening of…