The liability of the organs of the public limited company and the standing to sue of the assignee creditor

Facts

The D. AG, a public limited company, was established in 1989 and went bankrupt in 1993. The X. AG, a creditor of the D. AG, received a collocation of Fr. 750'000.-. The X. AG brought an action for liability against the members of the board of directors of the D. AG, A. and B., as well as against the C. AG, the auditing company of the D. AG. The X. AG alleged that the defendants had violated their duties and had caused harm to the creditors of the D. AG.

The district court of Schwyz dismissed the X. AG's claim, considering that the X. AG's claim was not due at the time of the D. AG's bankruptcy and that the X. AG had no standing to sue. The cantonal court of Schwyz confirmed this judgment, adding that the X. AG's claim had been extinguished by compensation with the collocataire claim of defendant A.

Considerations

The Federal Court examined the question of whether the assignee creditor, the X. AG, had standing to sue for liability against the organs of the public limited company, the D. AG. The Federal Court considered that the assignee creditor had standing to sue, as it had received a collocation of its claim and the claim had become a claim of the bankruptcy estate.

The Federal Court also examined the question of the compensation of claims. It considered that the defendant party to the liability action could set off claims it had against the company at the time of the…