Facts
Pension Funds X. and Y. filed a request with the debt collection office of Basel-City to obtain the inventory seizure of the premises leased to company [Z. AG], benefiting from a provisional composition moratorium, in order to safeguard their right of retention on the movable property for the overdue rent (CHF 798,636.35 for the period from January 1 to March 31, 2003) and the current rent (CHF 1,251,113.30 for the period from April 1 to June 30, 2003).
The debt collection office granted the inventory seizure for the overdue rent, but rejected the request for the current rent, on the grounds that the Pension Funds had not made it plausible that there was a concrete and immediate danger of removal of the objects, a condition required by the case law.
The Pension Funds appealed against this decision to the cantonal supervisory authority, which dismissed the appeal. They then brought the case before the Federal Tribunal.
Considerations
The Federal Tribunal recalls that the lessor of commercial premises has a right of retention on the movable property located in the leased premises and used for their furnishing or use (Art. 268 para. 1 CO). To provisionally safeguard this right, it can request the debt collection office to establish an inventory of the objects covered by the right of retention (Art. 283 paras. 1 and 3 DEBA).
Although company [Z. AG] was benefiting from a provisional composition moratorium at the time of the request, this did not prevent the establishment of the retention inventory. Admittedly, the enforcement of the pledge on movable property (Art. 283 para. 3 DEBA) is excluded during the moratorium (Art. 297 paras. 1 and 2 DEBA), but the filing of the enforcement request does not yet equate to the opening of the enforcement proceedings.
However, to safeguard a right of retention on the current…