Facts
The Pension Fund for the Employees of Bank Leclerc and Co. is a foundation established by the bank in 1950. According to the fund's regulations, the bank guaranteed a 5.5% return on the fund's investments. When the bank was granted a composition moratorium in 1977, the composition commissioners re-engaged a portion of the staff for the needs of the liquidation, taking over the terms of the previous employment contract. The pension fund then claimed payment of the 5.5% return guarantee for the period after May 6, 1977, the date of the bank's branch closures. The bank in liquidation refused to pay this guarantee for the period after May 6, 1977.Considerations
The Federal Tribunal ruled that the 5.5% return guarantee provided for in the fund's regulations constituted an allocation of assets to the purpose of the foundation, and not a mere revocable promise to give. The composition commissioners, in re-engaging a portion of the staff by taking over the terms of the previous employment contract, implicitly assumed the employer's obligations arising from the fund's regulations, including the return guarantee. These obligations therefore constitute debts of the composition bankruptcy estate from the granting of the bank moratorium on May 10, 1977.
The Federal Tribunal also ruled that the fact that the real estate investment made by the fund was risky did not release the bank from its obligation to guarantee a 5.5% return, since the regulations did not contain any reservation on the quality of the investments.…