Facts
The Transitbank Zürich, which was later renamed Nederlandsche Middenstandsbank (Schweiz) AG, granted Albarella Neve S.A. a loan of 4 million Swiss francs on July 3, 1975, with a term until December 15, 1975, and an interest rate of 8.5%. The collateral included a mortgage bond for 5 million Swiss francs on the property of Albarella Neve S.A. and a guarantee from Helfin Holding S.A. for 4.17 million Swiss francs.
Since Albarella Neve S.A. was unable to repay the loan at maturity on December 15, 1975, Transitbank Zürich granted Helfin Holding S.A. a loan of 500,000 Swiss francs and Albarval Holding S.A. a loan of 3.5 million Swiss francs on December 16, 1975. The mortgage bond of Albarella Neve S.A. was again mentioned as collateral.
On June 15, 1976, Transitbank Zürich granted Helfin Holding S.A. a loan of 4 million Swiss francs, with the parties declaring that the contract replaced the one from December 16, 1975. Here, too, the mortgage bond of Albarella Neve S.A. was mentioned as collateral.
Transitbank Zürich, which had later been renamed Nederlandsche Middenstandsbank (Schweiz) AG, demanded on October 28, 1976, that Helfin Holding S.A. repay the loan of 3.5 million Swiss francs that had become due on September 15, 1976. Since this did not happen, the bank initiated debt enforcement proceedings for the realization of the mortgage on November 15, 1976.
On November 23, 1976, Albarella Neve S.A. was granted a moratorium. Nederlandsche Middenstandsbank (Schweiz) AG reported a claim of 5 million Swiss francs on February 11, 1977, and referred to the established mortgage bond. The moratorium liquidator rejected the collocation and set a deadline for filing the collocation lawsuit.
The lawsuit filed by Nederlandsche Middenstandsbank (Schweiz) AG against Albarella Neve S.A. was dismissed by the Cantonal Court of Graubünden. The Federal Supreme Court partially upheld the lawsuit.
Considerations
The Federal Supreme Court concluded that there was no novation, i.e., no extinguishment of the old debt by the creation of a new one, but rather a mere assumption of debt by Helfin Holding S.A. and Albarval…