– August 6, 2021

May a distraint be executed in the absence of the debtor?

According to the Swiss Federal Supreme Court, the service of a distraint notice is subject to the service rules set out in Article 34 f. DEBA. Accordingly, qualified service – for example in the form of a registered letter – is not necessary.

For this reason, according to current case law, the fiction of service pursuant to Article 138 paragraph 3 lit. a CPC also applies, according to which an order that is not collected by the addressee is deemed to have been served on the last day of the seven-day collection period. This is subject to the condition that the addressee should have expected service.

The conclusion of the Federal Supreme Court’s ruling: the service of a distraint notice is analogous to Article 138 paragraph 1 CPC and Article 85 paragraph 2 CPC, but not necessarily by police.

Thus, the debt collection authority does not violate federal law if it executes a distraint in the absence of the debtor, since the distraint was duly announced.