Facts
In debt enforcement proceedings for the realization of a mortgage by Bank X. against A., whose whereabouts were unknown at the time, the competent debt enforcement office issued a certificate of shortfall on September 17, 1993. With an application dated January 16, 2006, Bank X. initiated debt enforcement proceedings for the shortfall claim. A. filed an objection and filed a timely action for denial on July 10, 2006, as the ten-year statute of limitations had expired on September 17, 2003. Bank X. argued that A. was of unknown whereabouts at the time the certificate of shortfall was issued and only moved to Zurich on June 24, 2005, so the statute of limitations did not begin to run until that date. The Commercial Court dismissed the action and declared the provisional enforcement order granted to Bank X. to be definitive.Considerations
The Federal Supreme Court dismisses the appeal. According to the case law, only those who are objectively prevented from suing in Switzerland for reasons independent of their personal circumstances, in particular if they have no place of jurisdiction in Switzerland, can invoke the suspension of the statute of limitations under Art. 134 para. 1 no. 6 CO. Subjective circumstances lying in the personal situation of the creditor that stand in the way of an otherwise possible action in Switzerland, on the other hand, do not fall under this provision.
The abstract possibility of establishing a place of jurisdiction in Switzerland does not in principle constitute a ground for exclusion from invoking Art. 134 para. 1 no. 6 CO. It cannot be expected of a creditor in every case of the debtor's absence abroad, which constitutes a ground…