The certificate of loss is the document issued by the debt enforcement office at the conclusion of a seizure or bankruptcy procedure when the debtor's assets were insufficient to fully satisfy the creditor. Provided for in art. 149 DEBA (enforcement by seizure) and art. 265 DEBA (bankruptcy), it constitutes a document of particular legal value, opening important long-term rights for the creditor. PBM Avocats advises you on the management and realisation of these titles from Geneva and Lausanne.
Issuance of the Certificate of Loss (art. 149 and 265 DEBA)
In the enforcement by seizure procedure, the certificate of loss is issued by the debt enforcement office after the realisation is closed and the distribution schedule is established (art. 149 DEBA). It is issued to the creditor for the portion of their claim — principal, interest and costs — that could not be covered by the proceeds of the sale of the seized assets.
In the bankruptcy procedure, the certificate of loss (art. 265 DEBA) is issued by the bankruptcy administration or the bankruptcy office to each creditor whose claim was admitted in the schedule of creditors but was not fully satisfied upon distribution of the liquidation proceeds. The amount stated in the certificate corresponds to the definitively uncovered portion of the claim.
Legal Effects of the Certificate of Loss
The certificate of loss produces several essential legal effects:
- Official recognition of the residual claim: it attests that the creditor remains holder of a liquid and due claim against the debtor, for the amount stated;
- Definitive lifting of opposition: the certificate of loss serves as definitive lifting of opposition for subsequent proceedings brought on the basis of this claim (art. 149 para. 2 DEBA). In case of opposition to a new payment order, the creditor can directly request definitive lifting of opposition without having to obtain an additional judgment;
- Right to resume proceedings: the creditor may resume proceedings without formality as soon as the debtor acquires new attachable assets or income (art. 149 para. 3 DEBA).
20-Year Limitation Period (art. 149a DEBA)
A claim evidenced by a certificate of loss issued following a seizure benefits from an extended limitation period of 20 years from the date of issuance (art. 149a DEBA). This exceptional period — well above the ordinary limitation periods of 5 or 10 years provided by the CO — reflects the legislator's recognition of the difficult situation of the creditor who has undergone an unsuccessful enforcement procedure.
For certificates of loss from a bankruptcy (art. 265 DEBA), the same 20-year duration applies. This long period gives the creditor time to observe the evolution of the debtor's financial situation and to act as soon as attachable resources appear.
Our lawyers monitor claims evidenced by certificates of loss, notably by tracking the debtor's assets (new acquisitions, inheritances, professional income), and initiate recovery procedures as soon as the conditions are met.
Resumption of Proceedings and Recovery Strategies
As soon as the debtor acquires new assets — for example an inheritance, a new salary, the sale of a property — the creditor can act immediately. It suffices to file a request to continue proceedings with the competent debt enforcement office, producing the certificate of loss as title (art. 149 para. 3 DEBA). The office serves a new payment order on the debtor, and if the latter does not pay within 20 days, the seizure procedure resumes.
It is also possible to assign the certificate of loss to a third party (collection company, investor) in exchange for consideration, thereby allowing the original creditor to recover part of their claim without waiting for a hypothetical improvement in the debtor's solvency. Our lawyers advise you on the market value of these titles and the terms of assignment.
Frequently Asked Questions About the Certificate of Loss
When does the debt enforcement office issue a certificate of loss?
The certificate of loss is issued at the conclusion of an unsuccessful seizure procedure (art. 149 DEBA) when the proceeds of the sale are insufficient to fully cover the claim, or at the conclusion of a bankruptcy procedure (art. 265 DEBA) for the portion of the claim admitted in the schedule of creditors but not satisfied. In the seizure procedure, the office issues it once the distribution schedule is finalised and the unpaid balance is established.
What is the legal value of a certificate of loss?
The certificate of loss constitutes official recognition of the residual claim. It serves as definitive lifting of opposition (art. 149 para. 2 DEBA) for new enforcement proceedings brought against the debtor on the basis of this title. The creditor therefore does not need a new judgment to initiate subsequent proceedings: they can directly require continuation of the proceedings if the debtor opposes the new payment order.
What is the limitation period for a claim evidenced by a certificate of loss?
A claim evidenced by a certificate of loss issued following a seizure is subject to a 20-year limitation period (art. 149a DEBA). This extended limitation period — compared to the ordinary period of 5 or 10 years — recognises the particular situation of the creditor who has had to undergo an unsuccessful enforcement procedure. For certificates of loss issued following bankruptcy (art. 265 DEBA), the limitation period is also 20 years.
What happens if the debtor acquires new assets?
The creditor holding a certificate of loss may resume proceedings as soon as the debtor acquires new attachable assets or income (art. 149 para. 3 DEBA for seizure; art. 265 para. 2 DEBA for bankruptcy), without having to serve a new payment order. It suffices to file a request to continue proceedings with the competent office, producing the certificate of loss as title. Monitoring the debtor's assets is therefore a strategic approach that our lawyers accompany over time.
Can a certificate of loss be assigned to a third party?
Yes. The certificate of loss is assignable like any claim (art. 164 et seq. CO). The assignment must be made in writing. The assignee acquires all rights attached to the residual claim, including the ability to resume proceedings and the benefit of the 20-year limitation period. Assignment of certificates of loss is common in the debt collection field; our lawyers advise you on the conditions and risks of such an operation.