I've been attacked twice using the same procedure
Someone I know gave me a loan a year ago, which I was supposed to pay back after six months. This loan was the subject of a written contract signed between us, but we agreed something else verbally. A disagreement arose and as I didn't pay him back, he filed a writ of execution against me, to which I objected. My creditor asked for the opposition to be lifted, but the judge rejected it because he hadn't produced the famous signed contract... I've just received a new summons to appear in court because he's filed the same request, this time producing the contract! Does he have the right to do this when we've already received a ruling on the matter?
A.
Yes, your creditor has the right to re-file a discharge application in the same lawsuit.
Under Swiss law, the procedure for releasing an objection allows a creditor to have an objection to a summons to pay lifted, provided that a valid debt instrument is produced. This procedure, governed by articles 82 et seq. of the Federal Law on Debt Collection and Bankruptcy (LP), constitutes a simple incident of debt collection. It does not determine the merits of the dispute, but merely allows the debt collection procedure to continue. To this end, the court only analyses the documents submitted to it by the parties.
This is why, unlike a court decision that gives a full ruling on the parties' claims after thorough investigations, the rejection of a first application for release does not mean that the creditor has lost his right to the debt. According to the established case law of the Federal Supreme Court (in particular BGE 140 III 456), such a rejection does not have the force of res judicata as to the very existence of the debt.
Thus, if the initial request fails for reasons of form or evidence - for example, because the signed contract is missing - the pursuer retains the option of returning with a complete new file. This means that he or she can apply for a new discharge, this time with the contract to support it, provided that the current proceedings are still valid.
In your situation, your creditor has simply corrected an initial error and re-asserted his right with the appropriate documents. The law gives him the opportunity to do this, without having to initiate new legal proceedings. In short, when it comes to debt collection, a refusal to release a debt is not the end of the matter, but sometimes just an administrative setback that needs to be overcome with a little rigour.
