Facts
The case concerns a loan agreement between Josef Müller and Arplan AG, represented by its sole signatory Chairman of the Board of Directors, Eugen Wildberger. Wildberger promised to use the loan of CHF 115,000 for the completion of four holiday homes and to be personally liable for the company's debt until the mortgage deeds were converted into mortgage bonds.
In November 1967, Arplan AG was declared bankrupt. Müller was only able to convert one of the four mortgage deeds into a mortgage bond and received a total of CHF 22,982.15 from the others in a settlement. His unsecured loan claim amounted to CHF 44,340.85 after the bankruptcy.
In July 1973, Müller sued Wildberger for payment of this amount plus interest. The District Court of Baden dismissed the claim, but the High Court of the Canton of Aargau upheld it and ordered Wildberger to pay.
Considerations
The Federal Supreme Court states that the wording in the contract, that the loan was granted "with Wildberger's personal liability", does not clearly indicate whether a suretyship or an independent debt commitment was agreed upon. The circumstances must be taken into account for the interpretation.
The Federal Supreme Court sees Wildberger's position as the main shareholder and Chairman of the Board of Directors of Arplan AG, as well as his direct interest in the conclusion of the loan agreement, as important indications that this was not a suretyship, but an independent obligation. The fact that Wildberger personally…