When the debtor has lodged an opposition to the payment order, the creditor must have this obstacle lifted through judicial proceedings to continue execution. The enforcement order procedure, governed by arts. 80 to 84 DEBA, is a rapid summary procedure that allows the judge to rule on the basis of the documents produced. PBM Avocats represents creditors and debtors in these procedures before the courts of Geneva and Lausanne.
The Definitive Enforcement Order (art. 80 DEBA)
The definitive enforcement order is granted when the creditor holds a definitive enforcement order title, namely principally:
- An enforceable civil or criminal judgment rendered by a Swiss court;
- A foreign decision recognised in Switzerland (according to the rules of PILA or international conventions);
- An enforceable administrative decision (tax decision, AHV decision, etc.);
- An enforceable authentic instrument (art. 347 ff CPC).
The enforcement order judge verifies the existence and enforceability of the title. The debtor may raise objections limitatively enumerated by art. 81 DEBA: extinction of the debt subsequent to the judgment (payment, novation, set-off), prescription, or moratorium granted by the creditor. These objections must be immediately proved by documents, without further investigation. The definitive enforcement order decision irreversibly extinguishes the opposition.
The Provisional Enforcement Order (art. 82 DEBA)
The provisional enforcement order is available to the creditor who produces an acknowledgement of debt signed by the debtor. Federal Supreme Court case law specifies that this title must unequivocally establish an obligation to pay a determined or determinable sum of money. Falling in particular into this category are: the signed loan agreement, the tenancy agreement with admissions, the promissory note, the first-demand bank guarantee, or an expressly acknowledged account balance.
During the summary procedure before the judge, the debtor may attempt to render it plausible that the claim does not exist or has been extinguished (art. 82 para. 2 DEBA). This demonstration must be convincing and supported by documents; a simple denial is insufficient. If the provisional enforcement order is granted, the debtor retains the right to bring an action to release from debt within 20 days (art. 83 para. 2 DEBA).
The Action to Release from Debt (art. 83 DEBA)
Within 20 days of notification of the provisional enforcement order judgment, the debtor may bring an action to release from debt before the competent court (art. 83 para. 2 DEBA). This ordinary action allows them to prove that the debt is not owed, that it has been extinguished, is time-barred or that its enforceability is deferred.
During the duration of the action, seizure of assets may be requested by the creditor, but it remains provisional. If the debtor succeeds, the enforcement proceedings are annulled. If the action is rejected or the debtor does not act within the 20-day period, the provisional enforcement order acquires the effects of a definitive enforcement order and the enforcement proceedings continue normally.
The Enforcement Order Procedure Before the Judge
The enforcement order application is subject to summary proceedings (art. 251 CPC). The creditor files their application with the competent court, accompanied by the title and the payment order. The judge sets a hearing or invites the debtor to respond in writing. The procedure is fast: the judge rules in principle within the weeks following the filing of the application.
Costs and expenses are in principle borne by the losing party. Our lawyers prepare the application or the response, gather the decisive documents and represent your interests at the hearing, whether you are a creditor seeking to lift the opposition or a debtor wishing to defend your position.
Frequently Asked Questions on Enforcement Order Opposition
What documents constitute titles for a provisional enforcement order?
According to art. 82 DEBA, any title signed by the debtor that acknowledges the existence of an obligation to pay a sum of money may found a provisional enforcement order. These include signed contracts (loan, tenancy, sale agreements), promissory notes, explicit acknowledgements of debt, personal guarantees or confirmations of bank account balances. The signature must be that of the pursued debtor or their duly authorised representative.
What is the difference between a provisional and a definitive enforcement order?
The provisional enforcement order (art. 82 DEBA) is granted on the basis of an acknowledgement of debt and may still be challenged by an action to release from debt within 20 days (art. 83 para. 2 DEBA). The definitive enforcement order (art. 80 DEBA) is pronounced on the basis of an enforceable judgment or equivalent title (administrative decision, enforceable authentic instrument); it definitively extinguishes the opposition and can only be contested by extraordinary means of appeal.
What is the deadline for requesting an enforcement order?
The law does not set a precise deadline for filing an enforcement order application, but the enforcement proceedings lapse if the creditor remains inactive. In practice, the application to continue enforcement must be made within one year of notification of the payment order (art. 88 para. 2 DEBA). The judge rules in principle quickly, the enforcement order procedure being a summary procedure subject to art. 251 CPC.
What happens if a provisional enforcement order is granted?
If the judge grants the provisional enforcement order, the opposition is lifted and the creditor may request continuation of the enforcement. But the debtor still has 20 days to bring an action to release from debt (art. 83 para. 2 DEBA), in which they must prove that the debt does not exist or has been extinguished. During this period and the duration of the action, the enforcement office may not proceed with definitive seizure of assets. If the action to release from debt succeeds, the enforcement proceedings are annulled.
Can the debtor oppose the enforcement order?
Yes. At the enforcement order hearing, the debtor may invoke limited objections: payment, remission of debt, prescription, set-off or moratorium granted by the creditor (art. 81 para. 1 DEBA for the definitive enforcement order). For the provisional enforcement order, the debtor may render it plausible that the debt does not exist or has been extinguished. These means must be immediately proved by documents, without referral to further investigation. A lawyer is strongly recommended to prepare this defence.