General Framework: Definition and Deadline
A certificate of default of assets is a document issued to the creditor when the debtor has failed to make a payment. It represents the unpaid amount of a claim (Art. 149 LP).
Since January 1, 1997, Art. 149a LP stipulates that a claim evidenced by a certificate of default of assets after seizure or bankruptcy is subject to a 20-year statute of limitations, whereas it was previously not subject to any limitation period.
Therefore, unless the creditor intervenes, the debtor will be released from their obligation after 20 years, instead of being pursued for their lifetime.
If the certificate of default of assets was issued after January 1, 1997, the period begins to run from the date of issuance of the certificate. However, if it was issued before January 1, 1997, the period begins from the entry into force of Art. 149a LP, i.e., from January 1, 1997 (Art. 2 para. 4 Final Provisions of the amendment of December 16, 1994).
It should also be noted that in the event of the debtor's death, the claim is barred against the heirs after one year from the opening of the estate (Art. 149a para. 1 LP).
Interruption of the Statute of Limitations
The 20-year period (Art. 149a para. 1 LP) is a limitation period. Unlike peremptory deadlines, it can be interrupted.
Indeed, while the purpose of the statute of limitations is to prevent the debtor from being pursued after a long period of creditor inaction, the creditor must still be able to assert their rights by preventing the limitation period from expiring: this results in an interruption of the limitation period by the creditor.
The provisions of the Swiss Code of Obligations (CO) (Art. 135-138 CO) regarding the interruption of the statute of limitations apply to the limitation periods under the LP. For example, Art. 135 CO provides that the statute of limitations is interrupted when the debtor acknowledges the debt (para. 1), notably by paying interest or installments, or when the creditor asserts their rights through legal proceedings (para. 2).
In other words, when the statute of limitations is interrupted, a new period begins. As a rule, the new period is the same as the one that was interrupted (Art. 137 para. 1 CO), namely 20 years, except in cases where the interrupting act is a judgment or a quantified acknowledgment of debt, in which case the new period is 10 years (Art. 137 para. 2 CO).
Special Case of Bankruptcy – Art. 265 LP
According to Art. 265 para. 2 LP, the certificate of default of assets has the legal effects mentioned in Articles 149 para. 1 and 149a LP. In other words, the claim established in the certificate of default of assets is subject to a 20-year statute of limitations (Art. 149a para. 1 LP), and the limitation period can be interrupted by the creditor.
However, Art. 265 para. 2 LP further specifies that a new enforcement action based on the certificate of default of assets can only be requested if the debtor's financial situation improves.
For there to be a return to better fortune, the jurisprudence specifies that it is not sufficient for the debtor to have resources above the minimum subsistence level (Art. 93 LP); the debtor must also be able to adopt a lifestyle commensurate with their situation and, in addition, save money.
It is also worth noting that if the creditor initiates a new enforcement action against the debtor by sending a payment order, the debtor has 10 days (Art. 74 para. 1 LP) to file a total objection. In the event of a dispute regarding the return to better fortune after bankruptcy, the objection must be substantiated.
If you need more information on this topic, Valentin's Legal Consultation would be pleased to welcome you to their office at 1 Rue du Valentin, 1004 Lausanne, to provide a more comprehensive response. You can also reach us by phone at 021 351 30 00 or by email at info@cjdv.ch.
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