Facts
In the bankruptcy proceedings of Martin Rigling, the auction of his property "Rössli" took place on April 12, 1956. For the property estimated at 23,000 francs, Eugen Bürgi bid 25,200 francs. Thereupon, Albert Kolp, St. Gallen, on behalf of the mortgagee Casana Institution, Vaduz, bid 25,600 francs. The bankruptcy officer awarded the adjudication to Kolp, but demanded proof of his authority to represent.
Kolp presented a general power of attorney signed by Eduard Morscher, Rankweil. However, the bankruptcy officer did not accept this power of attorney, as it was not signed in the name of the Casana Institution, but only by Morscher, and his authority to sign for the Casana Institution was not proven. Furthermore, Kolp did not have the amount for the realization and administration costs with him. Therefore, the bankruptcy officer declared the adjudication to the Casana Institution as not legally binding and continued the auction, in which Eugen Bürgi received the adjudication for 25,200 francs.
Considerations
The Federal Court confirmed the decision of the bankruptcy officer. It stated that an offer at an auction can only be made validly on behalf of another person if the bidder is the legal or contractual representative of that person. Any uncertainty about the right of representation should be excluded at an auction, as otherwise the adjudication would have to be revoked upon complaint of the represented party.
The general power of attorney presented by Kolp had two defects: firstly, it was not signed in the name of the Casana Institution, but only by Eduard Morscher, without his authority to sign…