Removal of Objection (Mainlevee) in Switzerland

Removal of Objection: A Central Mechanism in Debt Collection Law

When a debtor objects to a payment order, the proceedings are suspended. The creditor must then obtain the removal of the objection (mainlevee) for the proceedings to continue. The DCBA distinguishes two types: definitive removal (art. 80-81 DCBA) and provisional removal (art. 82 DCBA).

Definitive Removal of Objection (Art. 80 DCBA)

Art. 80 para. 1 DCBA provides that a creditor who holds an enforceable judgment may request definitive removal of the objection. The judgment must order the debtor to pay a specified or readily determinable sum of money. Court settlements and certificates of loss are treated as equivalent to judgments.

Art. 81 DCBA extends the scope of definitive removal to enforceable administrative decisions and arbitral awards. The removal judge does not re-examine the merits of the dispute: they verify only the existence of a valid enforceable title and the identity between the claim pursued and the one resulting from the title.

Provisional Removal of Objection (Art. 82 DCBA)

Art. 82 para. 1 DCBA allows a creditor who holds an acknowledgement of debt to request provisional removal of the objection. An acknowledgement of debt is a document signed by the debtor recognising that they owe a specified sum to the creditor. The Federal Supreme Court clarified in ATF 136 III 627 that the acknowledgement may be implicit: a signed loan agreement, an approved invoice or an accepted statement of account may suffice.

Art. 82 para. 2 DCBA provides that the judge grants provisional removal unless the debtor immediately makes plausible their liberation. The debtor must present concrete evidence (receipts, set-off, prescription, etc.) demonstrating prima facie that the debt no longer exists or is not yet due.

Difference Between Definitive and Provisional Removal

The distinction is important for the further course of proceedings:

1. Definitive removal: the debtor can no longer contest the claim within the framework of the proceedings. Only the route of review (art. 85a DCBA) in the event of new facts remains.
2. Provisional removal: the debtor has a period of twenty days to bring an action for release from debt (art. 83 para. 2 DCBA). If they fail to do so, the provisional removal becomes definitive.

The Removal Procedure (Art. 84 DCBA)

The application for removal is addressed to the judge at the place of the proceedings, i.e. the judge at the debtor's domicile. The procedure is summary (art. 251 let. a CPC): it is rapid and the judge decides on the basis of the documents produced, without detailed proceedings.

Art. 84 para. 2 DCBA provides that the judge gives the debtor the opportunity to comment before deciding. The decision may be appealed under art. 319 let. a CPC, within ten days.

The Action for Release from Debt (Art. 83 DCBA)

In the event of provisional removal, a debtor who wishes to contest the claim must bring an action for release from debt within twenty days of notification of the removal decision (art. 83 para. 2 DCBA). This action is brought before the competent ordinary court. The burden of proof lies with the debtor: they must demonstrate that the claim does not exist, is not yet due or has been extinguished.

If the debtor does not act within the twenty-day period, the provisional removal becomes definitive and the proceedings continue.

Practical Advice

1. Verify that your removal title is valid and enforceable before filing the application.
2. In the event of provisional removal, the debtor has twenty days to bring an action for release from debt: do not let this deadline pass.
3. The removal procedure is fast (generally a few weeks) and inexpensive.