Facts
Ruben Gabathuler AG obtained a composition moratorium from 14 January to 23 January 1982, before being declared bankrupt on 19 March 1982. During the moratorium, Credit Suisse was granted a mortgage right on 7 August 1981 to secure its claims. In the bankruptcy proceedings, the bankruptcy estate contested the validity of this mortgage right, invoking Art. 287(1)(1) DEBA on the avoidance action. The cantonal courts rendered contradictory decisions on whether the mortgage right had been constituted within the six-month period provided for by this provision.Considerations
The Federal Tribunal considers that the six-month period provided for in Art. 287(1)(1) DEBA must be extended by the duration of the composition moratorium, i.e. from 14 January to 3 March 1982, the date of publication of the decision to abandon the moratorium. Thus, the constitution of the mortgage right on 7 August 1981 falls within the extended six-month period.
However, the Federal Tribunal refers the case back to the cantonal court so that it can examine the other conditions for the application of Art. 287(1)(1) DEBA, namely the state of over-indebtedness of the debtor at the time of the constitution of the pledge…