Facts
R. is a trained psychologist who suffers from depressive moods and cardiovascular disorders and therefore receives a full disability pension. She still cares for about five to six patients, some of whom she treats at home and some of whom she visits at home. For her trips to the patients, her errands, and her contacts with the outside world, she uses a passenger vehicle of which she is the owner.
On February 22, 1982, R. filed for insolvency and bankruptcy proceedings were opened against her. The bankruptcy office included the Datsun Sunny passenger vehicle in the bankruptcy inventory. R. filed a complaint and requested that the car be excluded from the bankruptcy estate as a competence item, as she is dependent on the use of this vehicle for health reasons.
The President of the District Court as the lower cantonal supervisory authority upheld the complaint and instructed the bankruptcy office to leave the car to the debtor as a competence asset. However, the upper cantonal supervisory authority overturned this decision and denied both the competence quality of the car under Art. 92 para. 1 DEBA and under Art. 92 para. 3 DEBA.
Considerations
The Federal Court dismisses R.'s appeal. It states that according to its latest case law on Art. 92 para. 1 DEBA, there is nothing to prevent the motor vehicle that the debtor uses daily for his private local movements from being considered as non-attachable effects within the meaning of this provision. However, the car is generally not indispensable to the debtor and his family.
In the case of a disabled person like R., however, the situation is different. The wording and purpose of Art. 92 para. 1 DEBA prohibit the attachment…