In this article, we have analysed the most important updates and current case law in the area of debt collection and bankruptcy law from this year. You can find out what impact this may have on you in this article.
Entries in foreign commercial registers are not notorious facts
In BGE 150 III 209 of 3 April 2024, the Federal Supreme Court had to decide whether an entry in a foreign commercial register qualifies as a notorious fact.
Obvious and notorious facts are considered to be facts that require no further proof and are accessible to everyone.
The Federal Supreme Court rightly referred to the case law which qualifies entries in the Swiss commercial register as notorious. The Federal Supreme Court then dealt with how internet sources are to be considered in terms of the right to be heard in the event that they are categorised as notorious.
It came to the conclusion that not all sources that are publicly and easily accessible on the internet, even official internet sources, are automatically notorious facts. Otherwise, the definition would be too broad. Furthermore, the content of foreign commercial register entries cannot be categorised as clear and cannot be assumed to be known within the meaning of Art. 151 ZPO.
The complainant’s complaint that foreign commercial register entries do not fulfil the notoriety requirement is therefore justified.
The consequence of this Federal Supreme Court ruling is that only Swiss commercial register entries can be assumed to be notorious facts and thus comply with the principle of evidence.
An interest rate of 24% does not violate public policy
In judgement 4A_57/2024 of 3 September 2024, the Federal Supreme Court had to deal with the question of whether an interest rate of 24% was contrary to Swiss public policy when a loan was not repaid by the debtor.
The facts of the case involved a loan from two Chinese companies, but two individuals domiciled in Switzerland undertook to act as guarantors for the repayment of the loan. The loan agreement was concluded with an interest rate of 8% and it was agreed that this would increase by 15% per year if the financing were to fail. In addition, an interest rate of 0.05% was added for each additional day missed.
Based on this situation, the arbitration court in China ordered that the interest rate be increased to 24%.
One of the guarantors challenged this up to the Federal Court. He argued that such a high interest rate was contrary to Swiss public policy within the meaning of Art. V para. 2 lit. b of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The Federal Supreme Court considered that the Swiss Code of Obligations does not provide for an explicit maximum interest rate. It found that the provisions on the prevention of abuses in interest rates were also not applicable in this case and that Art. 20 para. 1 CO was also not expedient.
The Federal Supreme Court thus interprets the concept of public policy in connection with the enforcement of an arbitration award very narrowly.
Duty of the assignment creditor to provide information
The complainant in judgement 5A_459/2024 of 27 September 2024 took the view that no information had to be provided in Switzerland about Paulian avoidance proceedings conducted in Germany.
It justified this by stating that a foreign avoidance judgement cannot be recognised in Switzerland. The assigning creditor is then also not obliged to settle accounts.
The Federal Supreme Court considers that an assignment within the meaning of Art. 260 SchKG is not an assignment in the sense of civil law, so that the power to conduct the proceedings is transferred. The process is conducted by the assigning creditor in its own name and for its own account. However, it does not become the holder of the assigned claim, as this remains with the bankruptcy estate in accordance with Art. 260 SchKG.
According to the Federal Supreme Court, the assignment creditor’s duty to deliver the claim then results in the duty to report on the outcome of the judicial and extrajudicial efforts. A request from the bankruptcy office is therefore permitted and cannot be contested. The Federal Supreme Court states that the reporting and delivery obligation does not depend on how and where the assigning creditor has taken action and what kind of results he has achieved. Recognition of the foreign judgement is then unnecessary.
Non-disclosure of debt enforcement proceedings to third parties
The judgement 5A_245/2024 of 29 August 2024 dealt with the non-disclosure of debt enforcement to third parties pursuant to Art. 8a para. 3 lit. d SchKG if the claim was paid after the debt enforcement was raised and before the order for payment was served.
The Federal Supreme Court considered that Art. 8a para. 3 lit. d SchKG is not applicable if the claim was paid after the initiation of debt enforcement proceedings. However, due to the lack of an explicit legal basis, the Federal Supreme Court stated that the payment of a claim that has already been enforced allows for non-disclosure.
This applies if the payment of the claim is regarded as recognition and the debt enforcement is therefore justified.
With regard to the point in time from which a claim is deemed to be “pursued”, the Federal Supreme Court considers that the date of service of the payment order is relevant, in accordance with Art. 38 para. 2 SchKG.
It can therefore be concluded that the debt enforcement may not be disclosed to third parties in such a case.
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