Civil law appeal against a cantonal decision in debt collection and bankruptcy proceedings with incorrect indication of the time limit for appeal

Facts

The X. AG was subject to debt collection and bankruptcy proceedings by the Stiftung S. On 9 October 2008, the Betreibungsamt [Z.] issued a bankruptcy threat, which was notified to the X. AG on 15 October 2008. The X. AG filed a complaint with the cantonal supervisory authority on 22 October 2008, but it was rejected on 3 November 2008 due to a lack of motivation and signature. The decision of the cantonal supervisory authority contained an incorrect indication of the time limit for appeal, mentioning a time limit of 30 days instead of 10 days. The X. AG filed a civil law appeal on 3 December 2008.

The parties involved are the X. AG, the Stiftung S., the Betreibungsamt [Z.], and the cantonal supervisory authority. The key dates are 9 October 2008 (issuance of the bankruptcy threat), 15 October 2008 (notification of the bankruptcy threat), 22 October 2008 (filing of the complaint), 3 November 2008 (rejection of the complaint), and 3 December 2008 (filing of the civil law appeal).

Considerations

The decision of the cantonal supervisory authority contained an incorrect indication of the time limit for appeal, mentioning a time limit of 30 days instead of 10 days. According to Article 49 of the Federal Supreme Court Act (FSCA), parties may not be disadvantaged by an incorrect indication of the time limit for appeal. However, this protection only applies if the party acted in good faith and could not have known the actual duration of the time limit for appeal.

The X. AG was not represented by a lawyer and had no particular experience in procedure. Consequently, it could rely on the incorrect indication of the time limit for appeal contained in the decision of the cantonal supervisory authority. The Court considered that the X. AG had not acted with gross negligence in filing its civil law appeal on 3 December 2008, i.e. within 30 days of notification of the decision of the cantonal supervisory authority.

The Court also considered that the decision of the cantonal supervisory authority did not contain an explicit reference to Article 100 of the…