Facts
On December 3, 2012, B. (the creditor) served A. (the debtor) with a payment order for the sum of 299,624 francs with interest, invoking as the title of the claim an "IOU Loan note" signed by the two parties on June 5, 2008. The debtor filed a total opposition.
The Justice of the Peace of the district of Riviera - Pays-d'Enhaut ordered the provisional lifting of the opposition, a decision confirmed by the Enforcement and Bankruptcy Court of the Cantonal Tribunal of the Canton of Vaud. However, the Federal Tribunal upheld the debtor's appeal and rejected the request for lifting.
Considerations
The Federal Tribunal considered that the creditor, domiciled abroad, had not established the content of the applicable English law to the loan contract in question, although he had the obligation to do so. Although the judge of the lifting order is not required to establish the foreign law ex officio, the creditor had to nevertheless demonstrate the enforceability of his claim according to English law, which he did not do.
Consequently, due to the failure to establish the content of the applicable foreign law, the…