Duty of a third party to provide information to the bankruptcy administration

In its decision BGE 5A_126/2020, the Federal Supreme Court specified the duty of a third party to provide information to the bankruptcy administration. In this decision, the bank of the bankrupt was instructed to provide the bankruptcy office with information regarding its assets. The bank subsequently provided only part of the information requested by the bankruptcy office and pleaded that the duty to provide information under SchKG 222 para. 4 had thus been fulfilled. The case then reached the Federal Supreme Court, where the duty to provide information under SchKG 222 para. 4 and OR 400 para. 1 was specified. The considerations of the Federal Supreme Court are explained below.

The bankruptcy administration’s right to information under SchKG 222 para. 4 obliges third parties who dispose of the debtor’s assets to provide the same information as the debtor in the event of a penalty. This also applies to the duty to surrender.

Specifically, the third party’s duty to provide information concerns all items held by the third party for the account of the debtor. This also includes credit balances and claims that the debtor holds against the third party. Thus, the third party must provide the bankruptcy office with information on all items that are necessary to draw up an inventory.

According to the Federal Supreme Court, banks cannot invoke banking secrecy in such cases and thus refuse to provide information.

The Federal Supreme Court then concretised the duty to provide information and the duty to surrender in the law of mandates (OR 400 para. 1). As above, the duty of disclosure of a third party also applies to all objects held by the third party for the account of the debtor, as well as credit balances and claims that the debtor has against the third party. In addition, the information must clearly be complete and truthful.

The duty to surrender relates to the surrender of documents as well as the submission of documents relating to transactions conducted on behalf of the debtor. Purely internal documents are not subject to the duty of disclosure.

The Federal Supreme Court thus specified that the agent (in this case the bank) can only refuse to hand over documents if it is also not obliged to hand them over to the bankrupt principal. Thus, in the end, the appeal of the bank was rejected in the decision.