Under Swiss law, any person may commence debt enforcement proceedings against a third party with the debt enforcement office without having to produce an enforceable title or material evidence of the claim.
Given how simply the proceedings may be opened, the objection to the summons for payment is the fundamental legal instrument that allows the debtor subject to enforcement to bring the proceedings commenced against him to an immediate standstill.
The function of stopping debt enforcement and how the objection is exercised
The objection gives the debtor a simple, swift and accessible means of defence, which produces a direct suspensive effect on the compulsory enforcement proceedings:
- The immediate suspension of the proceedings: Filing the objection stops the course of the debt enforcement proceedings at once; until the objection has been set aside, the creditor cannot request the distraint of assets, a notice of impending bankruptcy, or the realisation of a pledge.
- Simple formalities and time limits: The objection requires no particular form and may be lodged verbally or in writing within ten days of service of the summons for payment (or within five days in debt enforcement proceedings based on a bill of exchange); the debtor need not state the grounds for the refusal, except in a specific case such as disputing the acquisition of new assets.
The shift in the procedural burden and the setting aside of the objection
By lodging an objection, the debtor disputes the existence of the debt or the creditor’s right to pursue debt enforcement, which places the burden of taking action entirely on the creditor:
- The creditor’s duty to act: Once the objection has been recorded, a creditor who wishes to continue compulsory enforcement must obtain an enforceable court decision setting the objection aside; the creditor must then bring proceedings to set the objection aside (definitively, where there is an enforceable judgment, or provisionally, where the creditor holds a written and signed acknowledgement of debt) or file an action on the merits for recognition of the debt.
- Protection of the debtor’s reputation: Where debt enforcement is blocked by an objection and the creditor takes no judicial step to have it set aside within three months, the debtor may ask the office that these proceedings no longer be disclosed to third parties when extracts from the register are issued, thereby limiting the harm to the debtor’s credit and solvency.
Until the objection is set aside, it may limit what appears on the extract from the debt enforcement office.
Legal sources
Federal legislation:
- Art. 69 para. 2 DEBA (content of the summons for payment, request to pay and notice of the objection)
- Art. 74 DEBA (ten-day period, verbal or written form, and total or partial objection)
- Art. 75 DEBA (no requirement to state grounds for the objection, and the exception of the acquisition of new assets)
- Art. 78 para. 1 DEBA(cited byFederal Supreme Court judgment 5A_487/2014 (direct suspensive effect of the objection on debt enforcement)
- Art. 79 DEBAandArt. 81 DEBA (action for recognition of the debt and proceedings to set aside the objection)
- Art. 88 para. 1 DEBA (continuation of debt enforcement subject to the absence or the setting aside of the objection)
- Art. 179 para. 1 DEBA (shortened five-day period for objection in debt enforcement proceedings based on a bill of exchange)
Federal case law:
- BGE 113 III 2 (as the act of debt enforcement requires no prior proof of the claim, the objection is the indispensable legal act imposed on the debtor in order to contest the proceedings)
- Federal Supreme Court judgment 5A_487/2014 (no formal requirement and no requirement to state grounds in order to provisionally stay compulsory enforcement by means of the objection)