Appeal against the judgment of the cantonal court ordering the reimbursement of amounts following avoidance actions

Facts

Z. and 115 other creditors of the bankrupt company W. AG and the bankrupt company V. AG have been assigned the avoidance actions of these two companies against X. and Y. by the bankruptcy administrator. On September 30, 1999, the creditors filed an avoidance action with the cantonal court of Zug, concluding that the defendants be ordered to pay amounts of CHF 195,022.71 and CHF 128,755.95. The cantonal court granted the claim, a decision confirmed on appeal by the higher court. The defendants then appealed to the Federal Tribunal, concluding that the action was inadmissible or, subsidiarily, that it should be dismissed.

Considerations

The Federal Tribunal considered that Art. 32(2) DEBA does not impose the obligation to transfer ex officio an avoidance action filed before an incompetent court. However, the cantonal procedural law may provide for such ex officio transfer. In this case, the Federal Tribunal held that the higher court should examine whether, under cantonal law, the justice of the peace was required to transfer the claim to the competent cantonal court.

Thus, Art. 32(3) DEBA, which provides for an additional time limit in the event of the dismissal of an action filed before an incompetent court,…