Adulthood according to federal judges

A while ago, my 17-year-old son received a payment order from the debt enforcement office at home concerning me, and he forgot to tell me about it. As a result, I have unfortunately received a notice of seizure! I’ve done some research and discovered that debt enforcement documents can only be served on an adult member of the debtor’s household in their absence. What will happen to me?

Paul, Carouge

Your surprise is understandable. However, when it comes to legal proceedings, a teenager may sometimes be considered mature enough to receive documents with significant legal implications.

As you have read, under Article 64 of the Federal Act on Debt Enforcement and Bankruptcy (LP), enforcement documents must, in principle, be served directly on the debtor. However, if the debtor is absent, they may be served on an adult living in the same household as the debtor.

It is precisely when it comes to the concept of an «adult» that things get interesting. One might think that you have to have turned 18 to fall into this category. However, the Federal Court has recently reiterated that debt enforcement law does not rely solely on civil age. What matters above all is the capacity for discernment of the person receiving the document – in other words, their ability to understand that this is an important official document which must reach its recipient promptly.

The case concerned a man from Geneva who contested the validity of a payment order served on his 16-year-old stepdaughter. The man argued that the service of the order was invalid as the teenager was a minor. The Federal Court did not agree with him. It noted that the girl was attending school as normal, was enrolled at a business school and showed no signs that would cast doubt on her capacity to exercise sound judgement. In these circumstances, the service of the order was deemed to be perfectly valid!

The judges also pointed out that, in principle, a person may be considered mature enough to receive a writ of summons from the age of 15, provided that the serving officer ascertains, during a brief exchange, that the person understands the situation.

The fact that the document was subsequently never received by the debtor has, unfortunately, not altered this analysis. Once service has been validly effected, the recipient’s oversight or inattention does not, in principle, affect either its validity or the time limit for lodging an objection.

In your case, if your son lives with you and displays a level of maturity normally expected for his age, it is likely that the service of the order to pay will be deemed valid despite him being a minor, as the courts consider this to be a responsibility that a teenager can assume if they are capable of understanding the significance of such a document.

Read Pascal Rytz's columns on Tribune de Genève