Deed of default: a possible delay?
Deed of default: a possible delay?
"Via the Internet, I have taken note of an article you wrote in "Le conseil de l'avocat - 3.2.2005" on the statute of limitations for certificates of default.You note at the end of the page: "The legislator has provided for a transitional regime for certificates of default issued before the new legal provisions came into force on 1 January 1997: the twenty-year period does not start to run until that date. May I ask you a pertinent question: on which article of law do you base this very interesting derogation?
Daniel, Epalinges
Most claims become time-barred after ten years, if the creditor fails to take the necessary steps to collect them, in accordance with articles 127 et seq. of the Swiss Code of Obligations (CO). According to this law, some claims are even time-barred more quickly, such as rent, wages, alimony or doctor's or lawyer's fees.
To avoid the debt becoming unpayable, the creditor must either get the debtor to sign a separate acknowledgement of debt, which must be renewed every ten years, or take legal action by serving a summons to pay.
When the Federal Law on Debt Collection and Bankruptcy (LP) was drafted, the legislator introduced an exception by declaring that claims recorded in certificates of default issued after unsuccessful debt collection or bankruptcy were not subject to the statute of limitations. When this legislation was revised at the end of 1994, it was decided that certificates of default issued after 1 January 1997 would henceforth be time-barred after twenty years.
One of the cardinal principles of our legal system is the non-retroactivity of laws, and it was unthinkable to decree that as of 1 January 1997 all deeds of defects would be time-barred after twenty years, including those issued more than twenty years previously which would have found themselves worthless overnight as a result of a change in the law. This is why this type of legislative change is accompanied by "transitional provisions", which are generally inserted at the end of the law concerned.
If you leaf through the LP to the end, you will be able to read the provision that interests you, more specifically in article 2 paragraph 5 of the Final Provisions of the amendment of 16 December 1994.
