Facts
The company M. T., the landlord of commercial premises, filed a debt enforcement request with the debt collection office in Lucerne on 17 December 1993 for a claim of CHF 86,655 plus interest, in order to continue to exercise its right of retention. However, the debt collection office rejected this request on 21 December 1993, considering that debt enforcement could only be initiated for the amount indicated in the retention deed, and that any additional claim would require a new retention deed.
The landlord contested this decision, but the debt collection office maintained its position in a letter dated 6 January 1994. The appeals filed by the landlord with the supervisory authorities on debt collection and bankruptcy of the canton of Lucerne, as well as the subsequent appeal to the Debt Collection and Bankruptcy Chamber of the Federal Tribunal, were rejected.
Considerations
The Federal Tribunal considers that the debt collection authorities are empowered to determine the scope of the civil law right of retention defined in Art. 268 CO. Just as the debt collection authorities can set the amount of rents and the periods concerned when establishing the retention deed, they can also verify whether the retention is not being exercised in an abusive manner.
The Federal Tribunal applies the same principle here as for garnishment orders, namely that the enforcement of the pledge can only relate…