Temporary legal standstill in the debt collection system
On 18 March 2020, the Federal Council issued an ordinance based on Art. 62 SchKG, which decrees a legal standstill for the entire territory of the Swiss Confederation in accordance with Art. 62 SchKG. Art. 62 SchKG empowers the Federal Council to decree a legal moratorium for a specific territory or for specific parts of the population in the event of an epidemic or a national disaster as well as in times of war. In more recent times, Art. 62 SchKG was applied in 1993 due to the flooding in Brig in the canton of Valais.
The regulation came into force at 7am on 19 March 2020 and it will apply until midnight on 4 April 2020.
Scope
The consequence of the ordered legal moratorium is that no debt collection actions may be taken against a debtor domiciled or resident in Switzerland for the duration of the moratorium(Art. 56 No. 3 SchKG). This protection of the debtor is not unlimited: Arrest proceedings or urgent protective measures are explicitly excluded. The latter in particular require an assessment in each individual case. What exactly is meant by the term "debt enforcement action" is not further defined by the law. The Federal Supreme Court's definition is as follows: "if an official act of the authority competent for this purpose brings the debtor closer to his objective and interferes with the debtor's legal position" (BGE 121 III 91 E. 6c.aa). Accordingly, the service of an order for payment is an obvious act of debt collection.
Effect
According to case law, debt collection acts performed during a legal standstill are not void in every case. However, they only take effect after the expiry of the legal standstill.
"Until April 19, 2020, debtors have peace of mind from debt enforcement proceedings."
In our view, Art. 63 SchKG applies to the current time limits for appeals under the SchKG, as neither Art. 62 SchKG nor the ordinance issued by the Federal Council on 18 March 2020 contain any further details. As a result, the Federal Council's legal standstill does not suspend the running of the time limit. If a time limit ends during the period of legal standstill, the time limit is extended until the third day after its end, whereby Saturdays and Sundays as well as state-recognised public holidays are not counted. As a result, a time limit expires on the third working day after the legal standstill. For the legal standstill decreed by the Federal Council on 18 March 2020, the deadlines that end during the legal standstill run until Wednesday, 8 April 2020. After that, the statutory debt collection holidays (seven days before and seven days after Easter) apply, which means that, in effect, no debt collection actions can be taken from 19 March to 19 April 2020 (cf. Art. 56 No. 2 SchKG). It remains to be seen how this four-week debt collection freeze will affect the debtors' payment morale.
Interruption of the limitation period
Another question raised by the Ordinance of 18 March 2020 is to what extent the imposed legal standstill has an influence on the interruption of the limitation period by "debt collection" pursuant to Art. 135 No. 2 CO. In this context, we are of the opinion that the ordinance should have no influence because the interruption of the limitation period occurs with the posting of the debt collection request. Service of the order for payment on the debtor is not required and consequently the interruption of the limitation period can be achieved independently of a debt collection action within the meaning of Art. 56 SchKG.
Balthasar Wicki will be happy to answer any questions you may have on this topic.