Bankruptcy

A leasing agreement is considered a so-called continuing obligation. 

After a filing for bankruptcy by a leasing party, attention should be paid to the following:

lessor in bankruptcy

asset positions

  • application of SchKG 211 / SchKG 211a
    • appointment of an insolvency administrator for the leasing agreement
      • bankruptcy assets become the debtor for services in place of the insolvent lessor
        • continue allowance of the leasing property for use or right of use
        • fulfilment of the purchase right
      • possibility for the lessee to demand assurances [cf. SchKG 83]
    • non-appointment of an insolvency administrator for the leasing agreement
      • lessee is relegated to asserting its claims as a monetary demand in the lessor’s bankruptcy [SchKG 219]

liability positions

  • filing claims
    • present and future leasing payments
    • contingent claims
      • non-fulfilment of the right to a leasing extension
      • non-fulfilment of the purchase right
      • non-fulfilment of the profit-sharing right when selling to a third party

lessee in bankruptcy

asset positions

  • application of SchKG 211 / SchKG 211a
    • appointment of an insolvency administrator for the leasing agreement
      • bankruptcy assets become the debtor for services in place of the insolvent lessee
        • remission of leasing payments and amortisation
        • possible fulfilment of the purchase obligation
      • possibility for the lessor to demand assurances [cf. SchKG 83]
    • non-appointment of an insolvency administrator for the leasing agreement
      • lessor is relegated to asserting its claims as a monetary demand in the lessee’s bankruptcy [SchKG 219]

liability positions

  • filing claims
    • possible damage claim for non-fulfilment of acquisition transaction
    • possible damage claim for non-fulfilment of construction obligation
    • damage claim for non-fulfilment of usage rights or right of use
    • contingent liabilities
      • non-fulfilment of the requirement to restore the property to is original state
      • non-fulfilment of the purchase obligation
      • claim for non-fulfilment of the timely return obligation 
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