Restitution of Undue Payment Following Compulsory Realization of the Debtor's Assets

Facts

This case concerns an action for restitution of undue payment brought by a debtor against his creditor, following a payment made in the context of enforcement proceedings. The debtor paid an amount he considered not owed, in order to avoid the compulsory realization of his assets. The central issue is whether Art. 86 DEBA allows him to recover this undue payment, despite the fact that the payment resulted from the compulsory realization of his assets.

The cantonal court ruled that the conditions of Art. 86 DEBA were met and that the debtor was entitled to recover the undue payment. The creditor appealed this decision to the Federal Tribunal.

Considerations

The Federal Tribunal dismisses the creditor's appeal. It considers that Art. 86 DEBA also applies when the payment results from the compulsory realization of the debtor's assets, and not only when the debtor has paid voluntarily. The essential point is that the payment was made to avoid enforcement, whether voluntarily or not.

The Federal Tribunal also notes that…