Facts
In 1979, L. C. subscribed a promissory note in favor of a bank in Geneva, the payment of which was guaranteed by A. by means of an aval. After the sudden disappearance of L. C., F. C., the brother of L. C., signed a document entitled "Acknowledgment of Debt" with A., in which he acknowledges owing A. the debt of L. C. towards the bank and undertakes to repay it together with A.
A. subsequently sued F. C. for payment of the balance of the debt, following which F. C. brought an action for debt release against A.
Considerations
The Court considered that F. C.'s commitment of August 28, 1979 constituted an assumption of performance of the obligation (Erfüllungsübernahme) provided for in Art. 175 para. 1 CO, and not a cumulative assumption of debt. It ruled that this internal debt assumption was not subject to a special form, even if the contract generating the original debt (the suretyship in the form of an aval) was subject to such a form.
Indeed, according to the Court, when the contract at the origin of the debt is not subject to a special form due to the nature of the promised performance, the assumption of this debt does not need to be made in a particular form either. Only…