How to get your money faster
If your business partner doesn't pay, you'll have to take legal action against them. This can be done more quickly with a new and affordable tool. By Michael Krampf, lic. iur., attorney at law, who works as a legal expert and editor at the Beobachter Advisory Center.
Enforceable authentic instrument" is the unwieldy name of a new tool that was introduced with the Swiss Code of Civil Procedure (CPC) at the beginning of 2011. It enables the creditor to enforce his claim against a defaulting debtor without prior civil proceedings. The object of the deed can be any type of performance. In addition to monetary claims, other benefits can also be considered, such as benefits in kind or the submission of a declaration of intent. Only certain areas of private social law are excluded from this. For example, for socio-political reasons, a public deed may not be drawn up for claims arising from employment, rental and consumer contracts (such as consumer credit agreements). On the other hand, the deed is possible for maintenance claims under family law. In practice, the deed was previously mainly drawn up if a debtor failed to pay a debt despite it being due and the parties agreed a repayment plan.
The notary is responsible for drawing up the deed. The debtor must pay the costs. These are based on the corresponding cantonal notary fee tariff. In the canton of Zurich, they are based on the amount in dispute. They amount to one per thousand of the amount in dispute, but at least CHF 200.
If the debtor does not pay later, the creditor must enforce the monetary claim by means of debt enforcement. He must therefore initiate debt enforcement proceedings against the debtor like any other creditor. If the debtor defends himself against the payment order with a legal proposal, the creditor must apply for its removal in court proceedings to open legal proceedings. The enforceable public deed has a privileged status compared to an ordinary acknowledgement of debt: it is regarded as a definitive title for the opening of legal proceedings. The debtor can still assert defenses. However, it is not enough for him to make them credible - as in the case of ordinary acknowledgement of debt. He must prove them immediately, with documents. Mere assertions are no longer sufficient. If the debtor fails to provide proof, the court will remove the legal proposal. The creditor can continue the debt enforcement proceedings until bankruptcy proceedings are opened. The debtor then has the option of bringing an action for a negative declaratory judgment or - if he has paid the claim - an action for recovery. In both cases, however, the plaintiff bears the litigation risk because he has to advance the court costs.
The public deed has another advantage: the creditor can use it to place a so-called attachment on the debtor's assets if they do not pay on time. As a result, the debtor can no longer dispose of the assets in question. Seizure is possible at the court at the place of debt enforcement or at the place where the assets are located.






