Facts
On 21 December 1962, the Swiss Bank Corporation (SBC) opened a credit of 250,000 fr. to Timor Watch Co SA, guaranteed in particular by three bearer mortgage bonds with a total amount of 100,000 fr. encumbering Timor's properties. On 23 September 1963, notary Friolet drew up these bearer mortgage bonds, which were deposited in the land register on 23 October 1963. Timor's bankruptcy was declared on 30 October 1963. The SBC submitted a claim of 120,258 fr. 65 and claimed a movable pledge on the three bearer mortgage bonds. The bankruptcy administration rejected the pledge right and ranked the claim in the fifth class.
The SBC brought an action to contest the ranking, concluding with the recognition of its pledge right. The Neuchâtel Cantonal Court ordered the rectification of the ranking, recognizing the SBC's pledge right on the three bearer mortgage bonds. The bankruptcy estate of Timor appealed to the Federal Court, contesting the validity of the pledge constitution.
Considerations
The Federal Court examined the validity of the pledge constitution on the bearer mortgage bonds. It recalled that the owner of a property can validly constitute a mortgage as security for a claim expressed in a bearer instrument, and that possession of a bearer mortgage bond does not imply any presumption as to the existence of the mortgage.
The Federal Court also examined the question of whether the authentic form is necessary for the constitution of a pledge on bearer mortgage bonds. It concluded that the agreement on the pledge of a bearer mortgage bond does not need to be in authentic form, and that the debtor can pledge the bearer mortgage bond under an agreement concluded without special form with the pledgee.
Finally, the Federal Court examined the question of when the debtor transfers possession of…