Assignment of Liability Claims of a Corporation to its Creditors

Facts

Klima and Thermik AG, a corporation, was in a financially difficult situation and on January 27, 1953 assigned its liability claims pursuant to Art. 754 et seq. CO against the former Board of Directors member Fritz Gschwind to a creditors' consortium in formation. This consortium, consisting of Orion Werke AG and other creditors of Klima and Thermik AG, then sued Gschwind for damages.

The Commercial Court of the Canton of Zurich dismissed the claim, as it considered the assignment to be invalid. The plaintiffs appealed, whereupon the Federal Supreme Court overturned the judgment and remanded the case to the lower instance for a substantive assessment.

Considerations

The Federal Supreme Court stated that the declaration of assignment met the formal requirements of Art. 165 para. 1 CO, as the circle of possible assignees was sufficiently defined. The nature of the legal relationship also did not preclude the assignment of the liability claim, as it was not of a highly personal nature and belonged to the company's assets even in bankruptcy.

Furthermore, the assignment to the company's creditors was not prohibited by the Debt Enforcement and Bankruptcy Act. Every debtor may dispose of its…