Facts
The debtor, M., was notified of a pursuit for provision of securities by the Office of pursuits of Hérens in October 2001, for capital amounts of 550'000 fr. and 3'000'000 fr., corresponding respectively to an irrevocable bank guarantee and a pledge of shares. The debtor requested the cancellation of the pursuit by means of a complaint, arguing that the pursuit in question was inadmissible under the DEBA, as it did not concern the provision of a sum of money.
The lower cantonal supervisory authority rejected the complaint, considering that art. 38 DEBA does not limit the securities to be provided to only pecuniary securities. The debtor appealed to the Chamber of pursuits and bankruptcies of the Federal Tribunal, which rejected the appeal.
Considerations
The pursuit for provision of securities does not constitute a special mode of pursuit, but an ordinary pursuit with a special purpose: that of ensuring the execution of a performance by the pursued party that is not intended to satisfy the pursuer directly, but to guarantee the execution of an obligation of which the pursuer is the beneficiary.
Doctrine is divided on the question of the nature of the securities referred to in art. 38 para. 1 DEBA. Some authors reserve the application of the federal forced execution procedure to only pecuniary securities, while others admit that the pursuit within the meaning of art. 38 DEBA is possible regardless of the type of securities to be provided.
The Federal Tribunal considered that the absence of any restriction in the legal text leads to the admission that…