Admissibility of the third-party opposition claim in case of alleged acquisition of ownership through possession instruction for bearer shares

Facts

Parties and procedural history:

The appellant ([A.] ), a bank with its registered office in Russia, acted as a creditor in debt enforcement proceedings against the debtor ([D.] ). It had previously acquired a claim under a public guarantee instrument and obtained legal enforcement. In the course of the seizure of 1,100 bearer shares in the [F. AG] (value: approx. CHF 3.6 million), the respondent ([B.] ), the debtor’s wife, claimed ownership of these shares. The shares had originally been evidenced in a share certificate and held in safekeeping by a fiduciary ([G.] ).

On 8 July 2019, the debtor signed a deed of assignment in which he assigned the shares «with all rights arising therefrom» to [B.] . At the same time, he informed the fiduciary of the sale and requested that [B.] be entered as the new sole shareholder in the share register. The fiduciary complied with this request. The share certificate was only handed over to [B.] on 25 January 2021 – after the shares had been seized on 22 January 2021.

First-instance decision: The Cantonal Court of SocRA allowed the appellant’s third-party opposition claim and dismissed [B.] ’s claim to ownership of the shares. It held that no transfer of ownership had taken place because there had been no valid transfer of possession of the shares.

Higher court decision: The Higher Court of the Canton of SocRA set aside the first-instance decision and referred the matter back to the first-instance court for a new decision. It considered the deed of assignment of 8 July 2019 to constitute a valid possession instruction within the meaning of Art. 924 para. 1 CC, by which the share certificate – irrespective of the parties’ knowledge of its existence – had been transferred from the sphere of influence of the debtor to that of [B.] . The first-instance court was therefore required to examine further whether the transfer was based on a simulated underlying transaction CO constituted an act subject to avoidance under the paulian action.

Appeal to the Federal Supreme Court: The appellant complained in particular of a violation of federal law, as the Higher Court had misapplied the requirements for a possession instruction and had wrongly not dismissed [B.] ’s claim to ownership ab initio. It sought the setting aside of the higher court’s judgment and the allowance of its third-party opposition claim.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court first examines the admissibility of the appeal. The contested decision of the Higher Court of SocRA is a separately issued preliminary CO interlocutory decision within the meaning of Art. 93 FSCA, as it refers the matter back to the first-instance court. The appeal is admissible because its allowance would immediately result in a final decision and thus spare significant time CO costs for an extensive evidentiary procedure. This applies in particular in view of the international circumstances and the possible complex taking of evidence abroad (cf. Art. 93 para. 1 lit. b FSCA; BOVEY, Commentary on the FSCA, marginal no. 34 and 38 to Art. 93 FSCA).

2. Legal nature of the third-party opposition proceedings:

The third-party opposition proceedings under Art. 106 et seq. DEBA are debt enforcement proceedings with reflex effect on substantive law. They serve to clarify whether a right asserted by a third party (here: ownership of the seized shares) precludes the seizure. The decisive point in time for the assessment is the date of the seizure (22 January 2021). A subsequent transfer of ownership (e.g. by handing over the share certificate on 25 January 2021) cannot therefore give rise to a right excluding the seizure (cf. STAEHELIN/STRUB, Basler Commentary on the DEBA, marginal no. 10 to Art. 106 DEBA).

3. Requirements for acquisition of ownership of bearer shares:

Under Art. 714 para. 1 CC and Art. 967 para. 1 CO, the acquisition of ownership of bearer shares requires, in addition to a valid underlying transaction, the transfer of possession of the document. Case law also requires that the parties declare their intention to transfer ownership («contrat réel»). The transfer of possession may take place by handing over the document CO by possession instruction under Art. 924 para. 1 CC. In the case of a possession instruction, the transferor and transferee agree that a third party (here: the fiduciary [G.] ) holds possession for the transferee. The intention to possess generally requires knowledge of the possession, but a general CO hypothetical intention to possess suffices if the thing is within the sphere of influence of the person concerned (cf. BGE 48 II 38 E. 2a; PICHONNAZ, Romand Commentary, marginal no. 31 to Art. 919 CC).

4. Assessment of the possession instruction in the specific case:

The Higher Court correctly held that the deed of assignment of 8 July 2019 constitutes a valid possession instruction. The debtor had the intention to transfer the shares definitively to…