Facts
In debt enforcement proceedings for the realization of a mortgage against B., the Obwalden Electricity Works reported a claim of CHF 181.75 on July 9, 1990. The Electricity Works relied on a statutory lien under Art. 836 of the Swiss Civil Code (ZGB), which it would possess based on the General Regulations for the Supply of Electrical Energy (EAR 90) that entered into force on July 1, 1990.
However, the Debt Collection Office Sarnen rejected the consideration of the reported claim in its order of July 12, 1990, as it was of the opinion that there was no statutory lien within the meaning of Art. 836 ZGB. The appeal filed by the Obwalden Electricity Works against this was dismissed by the Supervisory Commission of the Canton of Obwalden as the supervisory authority in debt collection and bankruptcy matters by decision of December 6, 1990.
Considerations
The Federal Supreme Court dismissed the appeal of the Obwalden Electricity Works against the decision of the cantonal supervisory authority.
According to the findings of the cantonal supervisory authority, the Act on the Obwalden Electricity Works of November 29, 1981 does not provide for a lien for the supply of electrical energy. Nor can a delegation norm be derived from the Act that would authorize the Board of Directors of the Obwalden Electricity Works to introduce a statutory lien for claims from electricity supply, as has been done through Art. 13 para. 2 of the EAR 90.
The Federal Supreme Court shares the view of the cantonal supervisory authority that a statutory basis in cantonal law is required for the introduction of statutory liens. The Federal Supreme Court does…