Facts
On March 9, 1960, the management commission of the Zurich Cantonal Court gave instructions to the Riesbach-Zurich bankruptcy office to submit all questions related to the assertion or waiver of disputed claims of the creditors' community to the creditors' meeting or by circular.
In the context of the bankruptcy of the company Fluri & Cie, it is disputed whether the balance of an account, which was assigned to a bank and then to the company Hefti & Cie, belongs to the bankruptcy estate or to the second assignee.
The bankruptcy office submitted this case to the management commission to conclude an agreement with the company Hefti & Cie without consulting the creditors, despite the instruction of the management commission of March 9, 1960.
The management commission refused the requested authorization, considering that the decision to submit the question to the creditors' meeting or by circular depends only on the legal provisions and not on the conditions set by the opposing party.
Considerations
The Commercial and Bankruptcy Law Chamber considered that the general instructions given by a cantonal supervisory authority to one or more subordinate offices have no value as a decision that can be appealed under Art. 19 DEBA, unless the supervisory authority intervenes in an ongoing enforcement procedure under its right of supervision (Art. 13 SchKG).
The Chamber also considered that the management commission had the competence to appeal and that the appeal was admissible, as it concerned the interests of the estate, i.e. the community of creditors.
The Chamber examined the question of whether the management commission could conclude an agreement with the company Hefti & Cie without consulting the creditors and considered that, as a general rule, it is the community of creditors that must decide…