Facts
The special administration of the bankruptcy of Mr. M. was tasked with realizing two parcels of land, co-owned by the bankrupt and Mr. J. Within the framework of the procedure under Art. 256 DEBA, purchase offers were made by various parties. It was decided to proceed with "private auctions", at the end of which the offer of Company S. SA was accepted. However, no promise of sale or sale was concluded within the allotted time, as the co-owner Mr. J. opposed the sale. Finally, with his agreement, the notarial sale took place on December 7 and 12, 2000, but it was concluded with Mr. Y., and not with Company S. SA. Ms. X., who had also made an offer, filed a complaint, primarily seeking the annulment of the award of the parcels to Company S. SA, the annulment of the sale to Mr. Y., and the award of the said parcels to herself; subsidiarily, she concluded that a new auction should be held. The complaint was dismissed by the cantonal supervisory authorities. Ms. X. appealed to the Debt Collection and Bankruptcy Chamber of the Federal Supreme Court, reiterating the conclusions she had made at the cantonal level. However, she no longer requests the annulment of the award and the sale, but only the declaration of their nullity.Considerations
The Federal Supreme Court upholds the appeal and annuls the contested decision. It considers that the existence of a ground for absolute nullity authorizes it to rule "ultra" or "extra petita", and therefore to decide itself on a measure outside any conclusion.
The Federal Supreme Court abandons its previous case law (ATF 106 III 79) and considers that, in a private sale as in a public auction, an authentic act is not necessary and that ownership is acquired by the verbalized decision of the office or the bankruptcy administration to award the object to be realized to the person whose offer has been accepted.
The Federal Supreme Court considers that the provisions relating to public auctions (Art. 257 et seq. DEBA and Art. 45 et seq. ORFI) are…