Facts
On 8 July 2003, the bankruptcy of Z. AG was opened and the bankruptcy proceedings were conducted in a summary manner. On 20 August 2003, the Zug bankruptcy office concluded a sales contract with W. GmbH for the sale of all assets and trademarks of the debtor for a lump sum of 5,000 Swiss francs. On 5 December 2003, the bankruptcy office published a notice of allocation and inventory in the Swiss Official Gazette of Commerce and in the official gazette of the canton of Zug.
On 6 January 2004, X. AG, the sole shareholder of the debtor, informed the bankruptcy office that it was willing to pay 150,000 Swiss francs for the sold assets, including the trademarks. X. AG and [Y.], former president of the board of directors of the debtor, filed a complaint against the private sale with the justice commission of the Obergericht as the supervisory authority for debt collection and bankruptcy.
The justice commission rejected the complaint on 18 October 2004. X. AG and [Y.] then brought the case before the Chamber of Debt Collection and Bankruptcy of the Federal Court, requesting the annulment of the private sale decision of 20 August 2003.
Considerations
The Chamber of Debt Collection and Bankruptcy of the Federal Court considered that the private sale decision was null due to a content defect. Indeed, the description of the object to be realized, namely the trademarks, did not meet the requirements of individualization.
The Chamber recalled that decisions that violate legal or regulatory provisions are null (art. 22 DEBA). In debt collection matters, decisions that are incomplete or indeterminate are considered contrary to public policy (IMBODEN, Nichtige Betreibungshandlungen, in: BlSchK 1944 S. 134; LORANDI, Betreibungsrechtliche Beschwerde und Nichtigkeit, N. 22 and 40 to art. 22 SchKG).
The Chamber also considered that the principles…