Facts
The estate community of the late A. is the owner of a condominium unit U.-GBB-x, which is encumbered by a first-rank bearer bond with mortgage in the amount of CHF 200,000. The estate community applied for the declaration of nullity of this bearer bond. The District Court of Siders and the Regional Court of Emmental-Oberaargau declined jurisdiction over this request. The heirs then filed a complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the bearer bond with mortgage does not constitute a physical embodiment of the mortgage right, but nevertheless exhibits a strong connection between the secured claim and the mortgage right. Therefore, it fulfills similar functions as a paper mortgage bond.
In interpreting Article 43(2) of the Swiss Civil Procedure Code, which regulates the local jurisdiction for the declaration of nullity of mortgage titles, not only the wording but also the legislative history, the purpose of the norm, and the systematic context must be considered. A purely grammatical interpretation does not yield a clear result as to whether the bearer bond with mortgage falls under the term "mortgage title".
From a teleological perspective, however, there are good reasons to treat the bearer bond with mortgage like a paper mortgage bond. This is because the declaration of nullity of securities that are…