Assignment of a Claim by the Administration of a Cooperative Society after the Suspension and Closure of the Bankruptcy of the Company

Facts

The Baugesellschaft Vacasa, a cooperative without member liability, assigned on 21 July 1959 a claim of 50,000 CHF secured by a second-rank mortgage on the Hôtel Astoria property in Arosa to Hans Gerber. On 16 December 1959, Hobet AG sold this property to Dr. Ackermann.

On 19 January 1961, the Baugesellschaft Vacasa went bankrupt. On 2 March 1961, the proceedings were suspended due to lack of assets. On 23 March 1961, it was registered in the Commercial Register that the cooperative only existed for the purposes of liquidation, under the business name "Baugesellschaft Vacasa in liquidation".

On 13 April 1961, Häberling, as the administrator of the "Vacasa-Baugenossenschaft", assigned the 50,000 CHF mortgage claim to Adolf Meier. On 14 April 1961, the Hôtel Astoria property was sold at auction, the proceeds also covering the second-rank mortgage claims. On 17 April 1961, Gerber assigned the claim and the lien to Dr. Ackermann.

Meier then unsuccessfully requested Gerber to return the certificate of claim in exchange for 4,000 CHF in cash and 10,000 CHF in cheques. He then filed an action against Gerber on 29 August 1961.

Considerations

The Federal Tribunal considers that the assignment of 13 April 1961 was valid. Although the Vacasa cooperative had been dissolved by the opening of the bankruptcy, it had not been deleted from the Commercial Register after the suspension of the proceedings, as there were still assets to be liquidated. The administration of the…