Facts
On 7 February 1985, bankruptcy proceedings were opened against Sauvage AG in Meiringen. The main asset of the bankruptcy estate is a property in which a hotel is operated. On 16 November 1983, this hotel was leased by Sauvage AG to M. for the period from 1 December 1983 to 30 November 1986. A right of pre-emption for the property was also granted to M. until 1 December 1986. Both contracts were registered in the land register of Meiringen on 18 November 1983.
On 22 May 1985, the bankruptcy office of Oberhasli established a schedule of claims in the context of the bankruptcy of Sauvage AG. This schedule of claims was established on the basis of an extract from the land register of 12 March 1985, which mentioned the mortgages of the Banque cantonale de Berne. The schedule of claims became final without being contested.
The Banque cantonale de Berne requested a double call for bids for the sale of the property, which M. contested. M.'s request was rejected by the supervisory authority for debt collection and bankruptcy of the canton of Berne on 14 November 1985.
Considerations
The decision of the Federal Court is based on the interpretation of articles 142 DEBA and 129 VZG. According to these provisions, mortgage creditors may request a double call for bids for the sale of a property. The schedule of claims, which is part of the distribution plan, determines the order of creditors.
The Federal Court considered that the bankruptcy office of Oberhasli had acted correctly in informing the Banque cantonale de Berne of the possibility of requesting a double call for bids, as it was listed in the schedule of claims as a mortgage creditor. M.'s request to…