Default of debtor (Switzerland)
The debtor of a due and enforceable claim is in default of debt if he has not performed his performance at the time of the circumstance triggering the default (usually a reminder or time lapse ) and is responsible for this delay. In the case of a monetary claim (especially outside of legal science ) one also speaks of default in payment .
requirements
Swiss law regulates debtor default in Art. 102-109 OR . The debtor is in default by issuing a reminder from the obligee, provided there is no expiry date. In day-to-day business transactions, it is common for a debtor to receive three reminders before enforcement is initiated against him, although there is no legal requirement for this.
Default interest
The default interest rate - unless otherwise agreed - is 5% p. a. ("Five per hundred" in the formulation of the law). The Swiss law knows the compound interest prohibition for default interest , which historically is a holdover of the Christian interest prohibition ( compound interest prohibition ).
Default damage
If the debtor is in default through fault, he may be liable for damages (Section 106 OR). However, the obligee must cover the damage he has suffered in advance from the default interest. If the delay in payment results in additional, specific damage, the obligee can invoice the delay damage. This is the case, for example, when the creditor had to take out a loan to bridge the default. The obligee must prove this damage caused by default in order to assert it. However, the legal situation does not prevent debt collection companies from regularly charging such default damage.
According to the case law of the Federal Supreme Court , the collection of outstanding debts is part of normal business activity, which is why the costs of collection may not be charged to the debtor. This does not affect contractually agreed fees that are payable in the event of default in payment.
Furthermore, the obligee's duty to mitigate damage applies; he must make the debt collection cost-effective.
Further legal consequences
If the debtor does not meet the claim against him despite a reminder, the pursuit of attachment (for natural persons ) or bankruptcy (mainly for legal persons ) can be initiated against him. This leads to a foreclosure of the claim. Relevant for this is the debt collection and bankruptcy law , regulated in the federal law of the same name. From a purely technical point of view, a reminder is even unnecessary for the enforcement, as the law enforcement authorities are not allowed to check the existence of a claim. Conversely, however, debt enforcement will result in default of payment at the latest if no prior warning has been given.
Web links
Individual evidence
- ↑ The Code of Obligations on the federal homepage (PDF; 1.4 MB). Visited on March 2, 2011.
- ↑ https://www.konsumentenschutz.ch/muss-ich-den-verzugschaden-bezahlen/
- ↑ Federal Act of April 11, 1889 on Debt Collection and Bankruptcy (SchKG) (PDF; 472 kB). Visited on March 6, 2011.
- ↑ Section 10 in the FAQ debt enforcement authorities ( memento of the original from March 5, 2011 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. of the Canton of Thurgau . Visited on March 6, 2011.
