Joint and Several Liability of the Transferring and Acquiring Tenant in the Transfer of a Lease Agreement

Facts

The case concerns the transfer of a commercial lease agreement pursuant to Art. 263 para. 4 of the Swiss Code of Obligations (CO). The appellant B. GmbH had transferred the lease agreement to A. Anlagestiftung. The lower court had assumed that a joint and several liability within the meaning of Art. 143-149 CO arises between the transferring and the acquiring tenant. The appellant argued that the liability of the transferring tenant is only subsidiary if the original obligation is not fulfilled.

Considerations

The Federal Supreme Court decided that Art. 263 para. 4 CO actually orders a joint and several liability of the transferring and the acquiring tenant pursuant to Art. 143-149 CO. The wording and the systematic of the law suggest that the terms "jointly and severally" and "liable" in Art. 263 para. 4 CO are to be understood in this sense. The Federal Supreme Court has also assumed a joint and several liability in other comparable provisions of the Code of Obligations, such as Art. 121 para. 2 of the Swiss Civil Code and Art. 181 para. 2 CO.

The appellant could not gain anything for its view with its teleological argument. A merely subsidiary liability of the transferring tenant would not better serve the interests of the landlord than the joint and several…