Facts
Parties involved: The guarantor (appellant), the assignee (B. SA), C. Ltd, D. SA (borrower), and E. (sole shareholder of the borrower).
Courts and dates: District Court of Aigle, 15 October 2020; Geneva District Court, 25 January 2022; Civil Chamber of the Geneva Court of Justice, 29 November 2022; Federal Supreme Court, 25 June 2024.
Main facts:
- In 2017, C. Ltd granted several financings to D. SA, currently in liquidation.
- On 19 December 2019, the guarantor undertook to pay the assignee 715,806 USD.
- In February 2020, the assignee obtained a default judgment against the guarantor's son.
- In June 2020, the assignee called on the guarantee offered by the father.
- The assignee initiated enforcement proceedings against the guarantor for 679,427 CHF with interest, indicating the obligation's cause as the undertaking of 19 December 2019.
- The guarantor filed an objection, and the District Court ordered provisional release on 15 October 2020, notified to the guarantor on 16 October 2020.
- The guarantor requested the reasoning on 22 October 2020 and received the reasoned decision on 17 December 2020.
- On 6 January 2021, the guarantor filed a debt release action with the Geneva District Court.
- The District Court declared the action inadmissible for lateness on 25 January 2022.
- The Civil Chamber of the Court of Justice dismissed the guarantor's appeal on 29 November 2022.
- The guarantor filed a civil appeal to the Federal Supreme Court, which dismissed the appeal.
Considerations
The Federal Supreme Court examined the question of the starting point of the 20-day period for the debt release action under Art. 83 para. 2 DEBA. The provisional release decision of first instance was first notified in its operative part and then, upon the debtor's request, by a reasoned decision. The question was whether the 20-day period starts from the notification of the operative part alone or from the notification of the reasoned decision.
Before the entry into force of the CPC, the 20-day period started from the notification of the reasoned decision of provisional release of first instance. According to case law, the suspensive effect attributed to the appeal prevents the entry into force of the release decision, with retroactive effect to the date of the challenged decision, and postpones this effect to the date of the notification of the decision on appeal, from which the 20-day period starts. An appeal to the Federal Supreme Court has no suspensive effect in matters of release.
Since the entry into force of the CPC, the provisional release decision can be communicated by the delivery or sending of an operative part. Doctrine and cantonal courts diverge on the question of whether…