Fictitious donation of a property by a debtor to his son with the aim of evading forced execution

Facts

The present judgment concerns an appeal against a decision of the debt collection office which considered it likely that the debtor had made a fictitious donation of a property to his son in order to evade forced execution. The creditor had requested the sequestration of this property.

The main facts are as follows

• The main trial between the creditor and the debtor began on 29 April 1980.
• Shortly before the request for sequestration, the debtor made a significant donation of a property to his minor son, without giving any reasons.
• The debt collection office and the cantonal authorities considered that this donation could be aimed at preventing the creditor from gaining control of the property.

Considerations

The Debt Collection and Bankruptcy Chamber of the Federal Supreme Court dismissed the debtor's appeal. It considered that the debt collection office could examine the likelihood of the creditor's allegation that the debtor had made a fictitious donation in order to remove the property from forced execution.

According to case law, the debt collection office cannot refuse to execute a sequestration order solely on the grounds that the debtor's ownership of the assets to be seized is not likely. However, Art. 10(1) of the Ordinance on the Realisation of Immovable Property (ORI) provides for an exception for properties registered in the land register in the name of a third…