Decision on the Waiver of Continuing a Passive Lawsuit by the Bankruptcy Estate

Facts

Amag Automobil und Motoren AG had filed a lawsuit against the Emil E. Bloch AG, which had gone bankrupt, for unfair competition. Before a new assessment of the claim for damages could be made, the legal dispute had to be discontinued due to the bankruptcy of the defendant. In the second creditors' meeting, the bankruptcy office applied to the creditors for a waiver of the continuation of this passive lawsuit. The creditor Dr. Tenger objected to this resolution and demanded the revocation or a further deadline for the submission of a cession request.

Considerations

The Federal Court dismissed the appeal. It stated that according to Art. 207 of the DEBA, no collocation procedure is to be carried out for bankruptcy claims that are the subject of legal proceedings already pending before the opening of the bankruptcy. Rather, the second creditors' meeting has to decide whether the lawsuit is to be continued by the bankruptcy estate or not. If the creditors' meeting decides to waive the continuation, the individual creditors can, according to Art. 260 of the DEBA, acquire the right to conduct the lawsuit at their own risk and expense.

The Federal Court held that Art. 63 of the Bankruptcy Act, which contains this regulation, is in line with Art. 207 of the DEBA and therefore cannot be considered unlawful. Even though Art. 260 of the DEBA primarily…