Facts
[X. AG] (the appellant) was informed by its auditor, [Z.] -AG, about its apparent over-indebtedness. Thereupon, the Cantonal Court of Zug opened bankruptcy proceedings against the company. The appellant filed an appeal against this opening of bankruptcy, which was dismissed by the High Court of the Canton of Zug.
In its appeal to the Federal Supreme Court, the appellant argued that the High Court had violated the rules on the burden of proof under Art. 8 CC by requiring it to prove the unfoundedness of claims amounting to around CHF 8.8 million.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that the bankruptcy judge establishes the facts ex officio, but the parties must participate in the establishment of the facts. Despite repeated requests, the appellant had not submitted the necessary evidence on whether consideration was provided for the commissions received. Therefore, it was not objectionable for the lower courts…