Dismissal of opposition
Dismissal of opposition
Under Swiss law, a creditor wishing to claim a sum of money must send a debt collection requisition to the debt collection office responsible for the place where the debtor is domiciled. This simple, quick and relatively inexpensive administrative procedure does not necessarily have to be preceded by legal proceedings, as is the case in other countries. On the other hand, it can be blocked by an equally simple statement of opposition from the debtor. The least onerous option for the creditor is to apply to the court for the opposition to be lifted, provided that the creditor has a document of title, i.e. proof that can be documented.This may be an enforceable judgment, which corresponds to a definitive discharge within the meaning of article 80 of the Federal Debt Enforcement and Bankruptcy Act (LP), or only an acknowledgement of debt recorded in a notarial or private deed within the meaning of article 82 LP, in which case the discharge that may be granted will only be provisional. An acknowledgement of debt may result from a unilateral declaration by the debtor confirming the validity of the claim or from a signed bilateral contract, such as a sale or lease agreement. There is an abundance of case law in this area, and cases must always be analysed on a case-by-case basis. When the pursuing party presents a convincing title and the debtor is unable to challenge it effectively, a judgment will be handed down declaring the opposition discharged, on the basis of which the creditor will be able in due course to request the continuation of the proceedings in order to have the debtor's assets seized or to have him declared bankrupt. They may, for example, try to prove that their part of the contract has in fact been fulfilled, or explain how the contract is invalid or vitiated. If the judge is not convinced and nevertheless declares the debt provisionally discharged, the debtor will still have the option of bringing an action before the court for discharge of the debt, during which his means of defence will be extended, in particular by the possibility of calling witnesses or requesting an expert opinion, which is not possible under the discharge procedure.
