Facts
The late Marie Boog-Bähny, who passed away on October 20, 1969, left her husband Alois Boog-Bähny and four children as her legal heirs. The inheritance has remained undistributed to this day. On March 15, 1972, Darlehenskasse Ebikon-Buchrain demanded repayment of loans that it had granted to the deceased in 1963 and 1964 from Alois Boog as the representative of the community of heirs. Since the repayment did not occur, Darlehenskasse initiated debt collection proceedings against the "inheritance of Mrs. Marie Boog-Bähny".
Alois Boog filed a complaint against the payment order, as he was not authorized to represent the inheritance. This complaint was, however, dismissed. Thereupon, Alois Boog filed a legal objection to the payment order, upon which the creditor was granted provisional debt enforcement.
On March 16, 1973, Alois Boog timely filed a claim for denial of the Darlehenskasse's claim, designating the "inheritance of Mrs. Marie Boog-Bähny" as the plaintiff. However, the claim was dismissed by the District Court of Lucerne-City and the High Court of the Canton of Lucerne.
Considerations
The Federal Supreme Court had to decide whether the inheritance as such can appear as the plaintiff in the denial proceedings and be represented by an heir. So far, the prevailing view in doctrine and case law has been that neither the community of heirs nor the inheritance as a special asset have legal personality and are therefore not capable of being a party to proceedings.
However, the Federal Supreme Court states that an exception to the principle of the inheritance's lack of procedural capacity is provided for in Art. 49 DEBA, according to which an undistributed inheritance can be pursued. It follows from this that the inheritance must also be recognized as having passive legitimation in the debt enforcement proceedings.
Regarding the question of whether the inheritance can also appear as the plaintiff in…