Facts

The X. AG (plaintiff) had filed a claim of CHF 1'750'000.- in the bankruptcy of [D. AG] and was collocated with CHF 750'000.-. The plaintiff derived this claim from the sale of a production facility. [D. AG] paid the first installment, but then refused further payments, arguing that the required condition for payment had not been met and the facility was not functional for industrial production.

After the majority of creditors waived the assertion of liability claims against the organs of [D. AG], the bankruptcy administration assigned these claims to the plaintiff and the first defendant. The plaintiff approached the District Court of Schwyz with the legal petition that the defendants be obliged to pay her, under joint and several liability, CHF 750'000.- plus interest at 5% since December 29, 1993.

The Cantonal Court of Schwyz overturned the first-instance judgment in partial approval of the plaintiff's appeal and did not consider the complaint and counterclaim. The Cantonal Court reviewed the material creditor position of the plaintiff, who had been collocated with legal force, and came to the conclusion that the plaintiff's claim from open purchase price installments had not been due before the opening of bankruptcy proceedings against [D. AG], or it had not arisen at all due to the lack of entry of the contractual condition.

Considerations

The Federal Court has approved the plaintiff's appeal. The plaintiff bases her claim on both Art. 757 CO and the decision of the bankruptcy administration of March 6, 1995, with which the claims from stock corporation law liability of the [D. AG] bankruptcy estate against its corporate organs according to Art. 260 DEBA were assigned to her.

The lower court wrongly denied the plaintiff's legal interest in the present lawsuit. Even if the plaintiff had been collocated with her claim against the bankrupt company without justification, she is, due to her formal creditor position in the liability proceedings, not only entitled to active legitimation, but in the event of success, she also has a claim to pre-satisfaction of her collocated claim that has become final from the proceeds of…