Facts
A. AG was a subcontractor involved in a construction project of C. GmbH. At the request of A. AG, the President of the Commercial Court ordered the provisional registration of a mechanic's lien on the property of B. AG. C. GmbH then submitted a bank guarantee from E. SA as substitute security.
By order dated September 25, 2015, the President of the Commercial Court struck the proceedings regarding the definitive registration of the mechanic's lien due to lack of subject matter and determined that the submitted bank guarantee was deemed sufficient security pursuant to Art. 839 para. 3 of the Swiss Civil Code (ZGB).
A. AG appealed this order to the Federal Supreme Court. It requested that the bank guarantee not be recognized as sufficient security pursuant to Art. 839 para. 3 ZGB.
Considerations
The Federal Supreme Court upheld the appeal and remanded the case to the Commercial Court for continuation of the ordinary proceedings for the definitive registration of the mechanic's lien.
The Federal Supreme Court stated that the bank guarantee did not meet the requirements for "sufficient security" within the meaning of Art. 839 para. 3 ZGB. On the one hand, the time limitation of the guarantee for default interest until August 31, 2025 was inadmissible, as the mechanic's lien also secures the creditor for default interest owed indefinitely.
On the other hand, the annual limitation of the validity of the bank guarantee with…