Facts

In three debt collection proceedings pending at the Debt Collection Office A. against X., the attachment notices were served on X. on September 2, 1985, in which the attachment was scheduled for September 6, 1985, at 7:00 p.m. On that day, however, the debt collection officer did not find the debtor in his residence. He subsequently prepared the attachment certificate in his office, citing the real estate owned by X. in A. as the object of attachment, based on his knowledge from a previous debt collection proceeding. The date of the attachment execution was recorded as September 12, 1985. The attachment certificate was mailed on September 23, 1985. However, the postal delivery officer was unable to hand it over to X., and he did not make use of the collection period set for him until October 1, 1985.

X. filed a complaint with the lower supervisory authority, requesting that the attachment be lifted. The lower supervisory authority partially upheld the complaint and amended the attachment certificate to state that the attachment was executed on September 7, 1985, rather than September 12, 1985. X. appealed this decision to the upper cantonal supervisory authority, which dismissed the complaint. Thereupon, X. appealed against this decision to the Debt Collection and Bankruptcy Chamber of the Federal Supreme Court.

Considerations

The Federal Supreme Court states that an essential element of attachment is the debt collection officer's declaration to the debtor that he must refrain from any unauthorized disposition of the seized assets under penalty of punishment. As long as the debtor has not been expressly informed of this statutory duty of omission, the attachment is not effective and has not been legally executed.

In the present case, it is established that the debt collection officer and the appellant did not meet on September 6, 1985, the date on which the attachment was announced. The debt collection officer was therefore unable to draw the appellant's attention to the restriction on disposition, which is why an attachment was not executed on September 6, 1985.

However, the debtor, to whom the attachment has been duly announced, is not entitled to thwart its execution by not appearing at the specified time and place. If the debt collection officer is aware of attachable assets of the debtor, he is entitled to draw up a corresponding attachment certificate. However, this measure only takes effect when the debtor has been…