Determination of the non-attachable wage amount by the debt collection office even in the event of the employee's bankruptcy

Facts

The case concerns the determination of the non-attachable wage amount pursuant to Art. 325 para. 1 CO. The employee [B.] had assigned a portion of his wage claim before he went bankrupt. In the debt collection proceedings subsequently initiated by the creditor, [B.] filed an objection due to lack of new assets. The creditor then requested the debt collection office to determine the non-attachable wage amount.

The debt collection office determined the non-attachable amount, whereupon [B.] filed a recourse. He was of the opinion that in such a case, only the judge pursuant to Art. 265 para. 3 DEBA could decide on the non-attachable amount.

Considerations

The Federal Court dismissed the recourse. It clarified that the debt collection office is obliged, pursuant to the express wording of Art. 325 para. 1 CO, to determine the non-attachable wage amount upon request of a party involved. The fact that the employee has filed an objection due to lack of new assets does not preclude this.

The Federal Court justified this by stating that future wage claims do not fall into the bankruptcy estate and the employee can continue to freely dispose of them. Therefore, he cannot invoke the objection of lack of new assets.

Furthermore, the debt collection office is better suited than the…