Facts
Y. was a member of the Board of Directors of Z. AG from January 13, 1966 to May 19, 1982. On April 25, 1983, the Cantonal Court of Schwyz confirmed a composition agreement with partial assignment of assets for Z. AG. In this, Z. AG transferred a portion of its assets to the creditors for liquidation and distribution. The liquidator also assigned the liability claims under corporate law against the former members of the Board of Directors and the former auditing body to X. Corporation and another creditor.
With a claim filed on September 14, 1987, X. Corporation sued Y. for liability under corporate law. The District Court dismissed the claim, which was confirmed by the High Court of the Canton of Lucerne. The plaintiff X. Corporation appealed the judgment of the High Court, which was partially upheld by the Federal Supreme Court.
Considerations
The Federal Supreme Court decided that Art. 758 of the former Swiss Code of Obligations (aOR) is to be applied analogously to court-approved composition agreements in which only a portion of the assets is transferred to the creditors for liquidation, insofar as the liability claims under corporate law belong to these transferred assets. This replaces the claim from the company's right with a uniform claim of the creditors' collective, with the corresponding order of defenses.
However, whether the liability claims actually belonged to the assets that were transferred to the creditors for liquidation is a matter of interpreting the composition agreement. Since the contested judgment does not contain any…