Partial Action: A Strategy Too Often Overlooked

Author:Mr Guillaume Jeangros and Clarisse von Wunschheim
Profession:Altenburger Ltd legal + tax
 
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A partial action is one in which a creditor only claims part of the debt owed against the debtor in court. The choice of a partial action may be based on various strategic reasons, in particular the desire to submit the dispute to the simplified procedure foreseen by civil procedure law (in cases where the amount in dispute does not exceed CHF 30,000), which is quicker and less costly.

The Swiss Supreme Court has recently issued various rulings on this subject.

Alleviation of formal requirements

In particular, the formal requirements for an action for partial recovery of several separate claims have been reduced. Up to now, the creditor claiming partial recovery of its debt had to specify (1) the scope of its various claims and (2) their order of priority. The Federal Supreme Court has now waived these requirements (ATF 144 III 452, para. 2.4). From now on, the creditor will only have to allege with sufficient precision the existence of a higher claim. For example, a commercial agent has a total claim of CHF 40,000 against the principal, of which CHF 25,000 is for unpaid fees and CHF 15,000 for expenses advanced on behalf of the principal. By reducing the total claim to CHF 30,000, the agent can benefit from the simplified procedure without having to specify exactly which part of this CHF 30,000 relates to his unpaid fees or expenses, nor the order of priority of the claims relating thereto. It will suffice for him to specify that his total claim is greater than CHF 30,000.

This simplification, with the cost and time savings it implies, is an undeniable advantage of partial action, in addition to the other - often forgotten benefits.

Simplified procedure

As indicated above, partial action offers the creditor reducing his claims to CHF 30,000 or less the possibility of benefiting from the simplified procedure. In contrast to the ordinary procedure (applicable when the value in dispute exceeds CHF 30,000), which is generally long and costly, the simplified procedure tends to have the dispute decided by the judge in a simple and rapid manner. Furthermore, the creditor may reduce its claims for the sole purpose of benefiting from the simplified procedure without this being considered an abuse of rights (Federal Supreme Court decision 4A_111/2016 of 24 June 2016, point 4.6).

Limited possibilities for counterclaims

A creditor who reduces the amount of its claims in order to benefit from the simplified procedure shall, in so doing, limit the...

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