Decision on the appeal against a disguised seizure order

Facts

Domag AG, as the assignee of its director Hans Meier, is claiming a commission share of 18,000 Swiss francs from Fritz Thönen, arising from a real estate transaction they carried out together with W. Gautschi. Thönen handed over to the criminal authority two envelopes containing 10,000 and 8,000 francs, which were provisionally deposited pending the settlement of the civil dispute with Meier. After the suspension of the criminal proceedings, Domag AG filed a civil action against Thönen, requesting the release of these 18,000 francs. The cantonal court ordered the deposit of this amount with the district court registry until the end of the civil proceedings, which Thönen is contesting by way of an appeal.

Considerations

The Federal Tribunal considers that the measure ordered by the cantonal court constitutes a "disguised seizure" aimed at securing the execution of a monetary claim, which is not in accordance with the federal law governing attachments (Art. 271 et seq. DEBA). Although the main claim concerns the claim of ownership of the deposited banknotes, it is clear that the real dispute concerns the payment of the disputed commission and that the claim of ownership is only a pretext to obtain a seizure authorized by cantonal law.

Consequently, the…