Facts
In 1983, the bankruptcy of X., a qualified painter and plasterer, was opened. Company Z. AG obtained three certificates of insolvent assets totaling CHF 72,640.90. Under the business name U. AG, this bankruptcy creditor assigned one of these certificates of insolvent assets (in the amount of CHF 20,010) to Y. on September 5, 2003, who decided in mid-September 2003 to purchase a single-family house in B. X. then submitted an offer of CHF 12,368 to Y. for plastering and painting work. On September 30/October 3, 2003, X. and Y. concluded a contract for work, which included a 3% discount in case of payment within 10 days. After the work was carried out, X. sent Y. an invoice for CHF 14,394.45 on November 3, 2003, including CHF 1,079.45 for painting the heating radiators carried out by company V. AG. Y. then deducted the amount of CHF 20,010 from the certificate of insolvent assets acquired from U. AG from this invoice, leaving X. with a balance of only CHF 5,615.55. X. objected to this set-off, claiming that he had not regained a better financial situation.Considerations
The question to be examined is whether the debtor of the certificate of insolvent assets can invoke the exception of not having regained a better financial situation not only in the context of enforcement proceedings against him, but also when a claim based on such a certificate of insolvent assets is set off against him.
The Federal Tribunal considers that the debtor…