Facts
The Betreibungsamt (Debt Collection Office) of Oberrieden seized the debtor's share in the undivided estate of his father on 13 July and 12 September 1953 (Art. 132 DEBA and Arts. 9 et seq. OSRPC). Following requests for realization, negotiations for an agreement were held in accordance with Art. 9 OSRPC, but they failed. The lower supervisory authority then ordered the auction sale of the debtor's right of participation pursuant to Art. 10 OSRPC.
The creditor involved in the seizure, the appellant, complained about this decision in order to obtain the dissolution of the estate community and the determination of the share due to the debtor. However, the cantonal higher supervisory authority rejected this request on 30 June 1954. It left open the question of whether the value of the seized share could be determined approximately (which would not prevent the auction sale anyway). Even if this were not the case, the auction sale would be justified, as the division of the estate would entail considerable difficulties and costs. Not only would the debt collection procedure be delayed, but the Betreibungsamt would risk being involved in a lawsuit in which an expert opinion would probably have to be obtained on the alleged enrichment of the estate community by the debtor's construction expenses. The debtor's share, initially estimated between 2,000 and 3,000 francs, could very well be practically offset by obligations (related to the use of the common property by him). In any case, it is doubtful that the proceeds of the liquidation would even cover the procedural costs.
Considerations
The Debt Collection and Bankruptcy Chamber considers that Art. 10(3) OSRPC is not intended to force the Betreibungsamt to expose itself to procedural costs whose coverage by the proceeds of the liquidation is uncertain, especially since it is likely that neither the debtor nor the creditor would be willing to provide a guarantee.
However, the Chamber is of the opinion that the appellant's request should be granted in principle. There is no indication that the division of the estate would entail particular inconveniences that would compromise the protection intended by the aforementioned provision. Admittedly, the case law has sometimes approved the auction sale of a right of participation when it was not reasonable to impose the costs of a lengthy division process with an uncertain outcome on the pursuing creditors. But this argument cannot be opposed to the creditor himself who…