Facts
The dispute opposes X., son of V., to Y., who brought an action for revocation of a gift against X. to obtain payment of Fr. 16'467.-, an amount corresponding to arrears of maintenance. V. was the sole shareholder of the public limited company K. and the sole partner of the limited liability company L. On 11 December 1998, company K. sold a property to company L. for Fr. 4.8 million. On the same day, company L. concluded a sales contract with company M. for the acquisition of this property at a price of Fr. 6.5 million. On 7 June 1999, V. transferred all shares of company L. to his son X. for Fr. 25'000.-. In 2001, company M. exercised its pre-emption right.
Y. brought an action for revocation against X. to obtain the revocation of the sale of the shares and payment of the counter-value. The District Court of St-Gall condemned X. to pay Fr. 16'467.- to Y. The Cantonal Court of St-Gall rejected X.'s appeal against this decision.
Considerations
The Federal Court examined whether the transfer of shares from V. to X. constituted a challengeable act. According to art. 286 para. 1 DEBA, gifts and gratuitous acts are challengeable if the debtor has performed them within the twelve months preceding the seizure or opening of bankruptcy. Art. 286 para. 2 ch. 1 DEBA assimilates to gifts acts for which the debtor has received a counter-performance that is in a disproportionate relationship to his performance.
The Federal Court considered that the value of the property encumbered with a limited pre-emption right had to be determined taking into account the market value of the property and the pre-emption right. The Cantonal Court had estimated that the value of the property was Fr. 6.5 million, taking into account the pre-emption right. The Federal Court approved this approach, considering that the value of the pre-emption right had to be taken into account in determining the market value of the property.
The Federal Court also examined the…