Facts
Parties: A. SA (defendant) and B. (plaintiff)
Court: IIe Cour de droit civil des Tribunal fédéral
Date: 3 August 2023
Facts:
- On 4 September 2020, A. SA was served with a payment order for 600,000 CHF.
- A. SA filed a complete objection.
- On 23 February 2021, the justice of the peace provisionally lifted the objection. The decision was initially communicated as an unmotivated order, and the motivated order was served on 16 April 2021.
- On 3 and 30 June 2021, the district court and the cantonal chamber confirmed that no debt enforcement action had been filed.
- On 14 July 2022, A. SA was served with a bankruptcy warning.
- On 2 August 2022, B. applied for the bankruptcy of A. SA.
- On 6 September 2022, the civil court declared the bankruptcy of A. SA.
- On 30 December 2022, the cantonal court dismissed the appeal of A. SA.
- The Federal Supreme Court set aside the decision of the cantonal court and referred the case back for further investigation and decision.
Considerations
The cantonal court found that the deadline under Art. 166 para. 2 DEBA began on 4 September 2020 and was suspended for seven days by the application for lifting the objection on 11 September 2020. The suspension ended twenty days after the service of the motivated decision on the lifting of the objection, i.e., on 6 May 2021, as neither an appeal nor a debt enforcement action had been filed. Thus, the deadline of fifteen months expired on 30 September 2022, "fifteen months minus seven days after 6 May 2021". The bankruptcy application filed on 2 August 2022 was therefore timely.
The appellant argued that the deadline under Art. 166 para. 2 DEBA began on 4 September 2020 without considering any suspensions and would have expired on 4 December 2021. Taking into account the suspension between 11 September 2020 and 6 May 2021 (a total of 237 days), the deadline would have been extended to 29 July 2022. The bankruptcy application of 2 August 2022 would therefore have been late.
The Federal Supreme Court…