Facts
On 6 October 1994, the bankruptcy of company Y. AG, active in the caviar trade, was opened. Companies V. and W. B.V. were assigned claims against the members of the board of directors A., B. and C. as well as against the auditing firm XZ. (now X. AG) for delay in declaring bankruptcy. They brought an action in liability against these persons and entities, claiming an amount of CHF 21,380,000. The cantonal court dismissed the claim on the grounds of prescription and lack of justification of the damage. The claimants appealed against this judgment.Considerations
The Federal Tribunal partially upheld the appeal and referred the case back to the cantonal court for an investigation into the alleged damage due to the delay in declaring bankruptcy. The damage resulting from the delay in declaring bankruptcy must be determined by comparing the financial situation of the company at the time of the actual opening of the bankruptcy with the situation that would have existed if the bankruptcy had been declared in a timely manner. Only the liquidation values of the assets are decisive, and not the operating values, because at the bankruptcy stage, it is the liquidation that takes precedence. When the grievance concerns the delay in…