Facts
B., acting jointly with three other persons, obtained a construction loan of 3,000,000 francs from bank X., secured by a bearer mortgage bond of the same amount. After terminating and demanding repayment of the loan, the bank requested the opening of enforcement proceedings for the realization of the chattel mortgage. The mortgage bond was acquired by the bank at the auction for 5,000 francs. Based on the deed of insufficient collateral, the bank requested the opening of ordinary enforcement proceedings against B. without a prior payment order.
B. invoked the benefit of excussion of immovable property (Art. 41 para. 1 DEBA) on the grounds that the bank had a right of pledge on immovable property. The cantonal supervisory authority dismissed the complaint, considering that the bank could assert the balance of the claim resulting from the construction loan, this underlying claim being distinct from the abstract claim incorporated in the mortgage bond.
Considerations
The Federal Tribunal upheld B.'s appeal and annulled the decision of the cantonal authority. It considered that the rule of Art. 855 para. 1 CC, according to which the creation of a mortgage bond extinguishes by novation the obligation from which it arises, is of a dispositive nature (Art. 855 para. 2 CC). The parties can therefore agree that the underlying claim subsists alongside the abstract claim incorporated in the mortgage bond.
Since the challenged decision did not establish the existence of such a derogatory agreement, the Federal Tribunal referred the case back to the cantonal authority to examine whether…