Facts
On 20 October 1960, the debt collection office of Buttisholz seized three cows belonging to Vinzenz Schaller, the debtor, for claims of Kasimir Frey. The debtor claimed that these cows belonged to his wife. She then filed a complaint against this seizure, requesting that the deadline to bring an action for recognition of ownership be granted to her under Art. 109 DEBA rather than Art. 107 DEBA. The cantonal supervisory authority upheld her complaint, which the creditor contested before the Federal Tribunal.Considerations
According to established case law, the deadline to bring an action for recognition of ownership under Art. 106 DEBA applies only when the seized property is under the exclusive custody of the debtor (or a third party acting on his behalf). In all other cases, particularly when the third party claiming ownership holds the custody of the property himself or shares it with the debtor, it is Art. 109 DEBA that applies, obliging the creditor to bring an action against the third party claiming ownership.
To determine who holds the effective custody of the property, only the question of who has the actual power of disposition matters. The debt collection authorities do not have to examine the legal validity of this factual situation, but can only take it into account insofar as it allows them to draw conclusions about the effective power of disposition.
In the present case, the debtor's wife cannot rely on entries in official registers or an admission by the creditor, as has been the case in other decisions. She also cannot produce a written lease agreement proving that she is the tenant of the farm, nor can she invoke a separation of property contract designating the…