Facts
Ernst A., Roland B. and Guido C. intended to establish a holding company under the name S. Holding AG in 1988. Bank X. declared its willingness to grant loans to the two operating companies H. AG and D. AG, on the condition that the holding company being established would provide a guarantee.
On 7 and 8 December 1988, Ernst A. and Guido C. signed two simple written joint and several guarantee obligations in favor of Bank X. for a maximum of CHF 800,000 and CHF 540,000 respectively on behalf of the future S. Holding AG. However, the S. Holding AG was not established.
In 1990, bankruptcy proceedings were opened against H. AG and D. AG. Bank X. then turned against Roland B. and Guido C. to recover the loss suffered from the granting of the loans. They disputed any liability.
Considerations
According to Art. 645 para. 1 CO, the actors are personally and jointly and severally liable for obligations they have incurred in the name of the company before its registration in the Commercial Register. If the contractual obligation is subject to different formal requirements depending on whether it is entered into by natural or legal persons, the question arises whether the liability of the actors under Art. 645 para. 1 CO also applies if the form prescribed for legal, but not for natural persons, has been observed.
The Federal Supreme Court concluded that the actors are contractually…