If a debtor has raised an objection in an enforcement proceeding, the objection can be eliminated through the proceeding to set aside an objection if an enforcement title exists. Provisional setting aside of the objection is granted for debt acknowledgments, while definitive setting aside of the objection is granted for judgments.<\/p>\n\n
If a provisional enforcement title exists, a request to provisionally set aside the objection can be submitted.<\/p>\n\n\n\n
Signed debt acknowledgments and claims established by a public document are considered provisional enforcement titles (art. 82 para. 1 DEBA).<\/p>\n\n\n\n
It is essential that the provisional enforcement title indicates that the debtor has committed to paying a specific amount to the creditor. In certain cases, determinability of the amount may also suffice.<\/p>\n\n\n\n
Debt acknowledgments can take the form of simple acknowledgments of debt in which the debtor, without specifying an underlying obligation, merely confirms with their signature that they owe a certain amount to the creditor (Abstract Debt Acknowledgment, art. 17 CO).<\/p>\n\n\n\n
Contracts signed by the debtor often suffice as provisional enforcement titles, e.g.:<\/p>\n\n\n\n
Provisional enforcement titles can be composed of multiple documents, such as when the signed contract does not specify the amount, but the contract refers to another document from which the amount can be derived.<\/p>\n\n\n\n
Public documents also qualify as provisional enforcement titles. These are public documents in which the debtor has committed to a specific payment to the creditor before a notary.<\/p>\n\n\n\n
If the document includes an explicit statement by the debtor acknowledging direct enforcement, it constitutes a defintive enforcement title (art. 347 CPC in conjunction with art. 349 CPC). If there is no mention of direct enforceability, it constitutes a provisional enforcement title.<\/p>\n\n\n\n
In the proceedings to set aside the objection, the debtor can raise all objections and defenses stemming from the underlying legal relationship of the claim. For instance, in the case of a claim arising from a purchase contract, the debtor can object that the contract was poorly fulfilled, such as claiming that the purchased item is defective and that they are entitled to a reduction (objection). hey can also assert that they never entered into a contract with the creditor (defense).<\/p>\n\n\n\n
The debtor must substantiate their objections and defenses with credibility (art. 82 para. 2 DEBA). Mere assertions are not sufficient for substantiation.<\/p>\n\n\n\n
If the debtor\u2019s objections or defenses are credible, the request for provisional enforcement will be rejected. In such a case, the creditor can pursue their claim through regular legal proceedings.<\/p>\n\n\n\n
However, if the debtor\u2019s objections or defenses are not credible, provisional enforcement will be granted. If the debtor does not file a denial action, the creditor can submit a continuation request and proceed with the enforcement.<\/p>\n\n\n\n
In proceedings to provisionally set aside the objection, the existence and extent of the creditor\u2019s claim are not determined; rather, the focus is solely on whether the conditions for setting aside the objection are met. As a result, provisional setting aside of the objection does not definitively eliminate the objection.<\/p>\n\n\n\n
After provisional setting aside of the objection is granted, the debtor has the right to contest the existence and extent of the claim through an action for release from the debt in regular legal proceedings.<\/p>\n\n\n\n
The action for release from the debt must be initiated within 20 days after the proceedings to set aside the objection at the court in the place of enforcement (art. 83 Abs. 2 DEBA).<\/p>\n\n<\/div>\n
Executable court judgments and other titles specified in the law are considered as definitive enforcement titles (art. 80 DEBA).<\/p>\n\n\n\n
The following are considered definitive enforcement titles (art. 81 DEBA):<\/p>\n\n\n\n
Executable public documents are also considered definitive enforcement titles. The document must contain a declaration by the debtor acknowledging direct enforcement (art. 347 in conjunction with art. 349 CPC). In absence of such a declaration, it is only a provisional enforcement title.<\/p>\n\n\n\n
In the proceedings for definitive setting aside the objection, the debtor\u2019s objections are limited, and they must prove them with documents (art. 81 para. 1 DEBA). The following objections are permissible:<\/p>\n\n\n\n
If the claim is based on an executable public document, the debtor can raise additional objections but must be able to prove them immediately (art. 81 Abs. 2 DEBA).<\/p>\n\n\n\n
For decisions from other countries, the debtor can raise objections provided for in the applicable international treaty or the Federal Act on Private International Law (art. 81 para. 3 DEBA). Decisions within the scope of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments (Switzerland, EU, Denmark, Iceland and Norway) are recognized incidentally in the enforcement proceedings without a separate recognition procedure.<\/p>\n\n\n\n
In the proceedings for definitive setting aside the objection, the debtor does not have the option of an action for release from the debt. If the claim is based on an executable judgment or administrative decision, it has already been examined in that proceeding. Therefore, there is no room for an action for release from the debt in definitive enforcement.<\/p>\n\n<\/div>\n
Setting aside of the objection can only be requested if the debtor has been subjected to enforcement proceedings and has raised an objection. Without enforcement and objection, setting aside of an objection is not possible.<\/p>\n\n\n\n
A provisional or definitive enforcement title must be present. Without an enforcement title, the request will be rejected.<\/p>\n\n\n\n
The creditor from the underlying legal relationship must be identical to the one who initiated the enforcement and also submitted the request to set aside the objection. If the claim has been assigned, the assignment must be proven.<\/p>\n\n\n\n
The debtor from the underlying legal relationship must be identical to the one against whom the enforcement and request to set aside the objection are directed.<\/p>\n\n\n\n
The claim from the underlying legal relationship must be identical to the one that has been subjected to enforcement and for which setting aside the objection is being requested.<\/p>\n\n\n\n
The claim must have been due at the time of initiating the enforcement. The creditor must provide evidence of maturity (BGer 5A_898\/2017, E.3.1). If the claim is not due at the time the enforcement is initiated, the debtor does not have to accept enforcement and can rightfully raise an objection (BGE 128 III 44, E.5.a). This could lead to the rejection of the request to set aside the objection.<\/p>\n\n\n\n
This hurdle primarily applies to provisional enforcement. However, it is also conceivable for definitive enforcement titles to establish the maturity of a claim at a future date, such that the claim was not due at the time of initiating the enforcement.<\/p>\n\n<\/div>\n
The judge at the place of enforcement is territorially competent to decide on requests for setting aside of objections (art. 84 para. 1 DEBA). The summary procedure applies (art. 251 cif. a CPC).<\/p>\n\n\n\n
The material jurisdiction falls within the regulatory authority of the cantons and is governed differently according to each canton\u2019s laws. In canton Zurich, the single judge is competent for the summary procedure (\u00a7 24 cif. c GOG).<\/p>\n\n\n\n
Against decisions on setting aside objections, both in provisional and definitive enforcement, an objection can be filed with the upper cantonal instance (art. 309 cif. b Ziff. 3 CPC, art. 319 cif. a CPC).<\/p>\n\n\n\n
The objection must be submitted within 10 days from the delivery of the reasoned decision (art. 321 para. 2 CPC).<\/p>\n\n\n\n
In the appeal procedure, only incorrect application of the law and manifestly incorrect establishment of facts can be contested (art. 320 CPC). Due to this limitation of the review scope of the appellate instance, successfully appealing is challenging.<\/p>\n\n\n\n
If a decision from another state falls within the scope of the Lugano Convention and serves as the enforcement title, recognition and enforceability can be contested within one month after being served. The grounds for refusal of recognition are examined with full judicial review (art. 43 para. 5 Lugano Convention, art. 327a CPC).<\/p>\n\n<\/div>\n
Services<\/strong><\/p>\n\n\n\r\n Further reading<\/strong><\/strong><\/p>\n\n\n\r\n Information on provisional and definitive setting aside of objection against a payment order<\/p>\n","protected":false},"featured_media":0,"parent":0,"menu_order":13,"template":"","rechtsgebiet-kategorie":[44],"class_list":["post-1415","rechtsgebiet","type-rechtsgebiet","status-publish","hentry","rechtsgebiet-kategorie-debt-collection"],"acf":[],"_links":{"self":[{"href":"https:\/\/moor-law.ch\/en\/wp-json\/wp\/v2\/rechtsgebiet\/1415","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/moor-law.ch\/en\/wp-json\/wp\/v2\/rechtsgebiet"}],"about":[{"href":"https:\/\/moor-law.ch\/en\/wp-json\/wp\/v2\/types\/rechtsgebiet"}],"wp:attachment":[{"href":"https:\/\/moor-law.ch\/en\/wp-json\/wp\/v2\/media?parent=1415"}],"wp:term":[{"taxonomy":"rechtsgebiet-kategorie","embeddable":true,"href":"https:\/\/moor-law.ch\/en\/wp-json\/wp\/v2\/rechtsgebiet-kategorie?post=1415"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\r\n
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