Enforcement of claims
If a debtor does not pay, the claim must be enforced. Which path the enforcement of the claim takes depends on whether it is a monetary claim or other type of claim. Enforcing claims incurs costs, which must be set in relation to the intended success. The right procedure helps to avoid costs.
In the case of monetary claims, a debt enforcement procedure will usually have to be initiated after an unsuccessful demand for payment. If the debtor does not raise a legal objection, a request for continuation can be made.
If the debtor raises a legal objection, the debt enforcement cannot be continued until the legal objection has been eliminated. The legal objection must be eliminated in legal proceedings. If the claim is based on a provisional or definitive title, a less expensive and usually quicker procedure for dismissing the objection can be carried out instead. After the elimination or dismissal of the objection, a request for continuing the enforcement proceedings can be filed.
If the debtor is not registered in the commercial register, the debt collection office will proceed to seize assets. Any seizure proceeds are paid to the creditor after deduction of the costs of the debt collection office (and, if applicable, the dismissal proceedings). If nothing can be collected from the debtor, a certificate of loss will be issued after one year.
If the debtor is registered in the commercial register, the debt collection office will serve him with a bankruptcy notice. If the debtor does not pay, the creditor can file a petition for bankruptcy with the court. This procedure is not without risk for the creditor, as he must advance the initial costs of the bankruptcy office.
If the conditions are met, assets of the debtor in Switzerland can be seized by attachment order. During the following execution, the seized object is realised and the proceeds, after deduction of the costs, are paid out to the creditor up to the amount of the claim. In particular, the following are grounds for attachment: the debtor’s domicile is outside Switzerland and the claim has a connection with Switzerland or is based on an acknowledgment of debt; the creditor has a definitive title to initiate legal proceedings against the debtor.
Defence against claims
If someone is confronted with a claim that he or she believes is not justified, it must be defended against. The nature of the claim and the approach of the (alleged) creditor determine to some extent the further course of action. Defence by all means available makes sense if the claim does not actually exist. If the claim is justified, alternative procedures must be examined and the benefits and risks carefully weighed up.
If, for example, a monetary claim is wrongly asserted, the (alleged) creditor must be informed of this. In order to avoid a debt collection and proceedings which also result in costs for the debtor which he cannot fully pass on to the creditor, the defence should be started as early as possible.
If the creditor sticks to his claim, he will probably initiate debt enforcement proceedings. The debtor should raise a legal objection and force the creditor into court proceedings (ordinary civil action or dismissal proceedings). In the proceedings, the debtor can raise his objections and defences. If the action is successful, it will be dismissed.
If the claim actually exists, it must be determined whether an agreement can be reached with the creditor. The creditor may be willing to reduce the claim or agree to payment in instalments. Which procedure to choose depends on the circumstances of the individual case.