Cancellation of an ordinary debt collection due to a rental guarantee

Facts

Y. AG initiated an ordinary debt collection against X. SA for the payment of rent and charges due for the period from April 1 to June 30, 2002. X. SA objected to the payment order and filed a complaint, invoking the exception of the beneficium excussionis realis, alleging that it had provided a bank guarantee of CHF 10,200 to the creditor. The cantonal supervisory authority rejected the complaint, considering that there had been no constitution of a real right in favor of the landlord over the cash that was the subject of the guarantee. X. SA appealed to the Federal Tribunal, which granted its conclusions.

Considerations

According to the Federal Tribunal, the debtor who invokes the exception of the beneficium excussionis realis must demonstrate that the debt collection claim is secured by a pledge within the meaning of Art. 37 DEBA. In this case, X. SA establishes that the rental guarantee it has provided under Art. 257e CO constitutes a form of consignment as security which gives rise to a right of pledge within the meaning of Art. 37 DEBA for the…