Liability in corporate law; composition by partial assignment of assets

Facts

Z. AG concluded a composition by partial assignment of assets on 25 April 1983. X. Corporation, as a creditor ranked in the 5th class for a claim of over 13 million francs, took over the liability claims of Z. AG against the former members of the board of directors and the supervisory body. X. Corporation then brought an action for payment of 1 million francs against Q., a former member of the supervisory body of Z. AG, on the basis of liability under corporate law.

Considerations

The Federal Tribunal ruled that the liability claims for the indirect damage of the company's creditors were part of the assets transferred to the creditors as part of the composition by partial assignment of assets of Z. AG. This is deduced from the interpretation of the composition, in particular the general clause transferring the entire assets of the company to the creditors, with the exception of certain listed assets.

According to the case law of the Federal Tribunal, the distinction between direct and indirect damage to creditors does not depend on the mass of assets directly affected by the damage, but on the legal basis of the obligation to make reparation. Direct damage to creditors only exists when the culpable conduct of a body has violated duties towards the creditor personally, for example under Art. 41 CO. On the other hand, when the violation concerns provisions protecting both the interests…