Facts
On May 14, 1970, Werner Cermak concluded a contract with a consortium consisting of Dr. Ernst H. Egli, Richard Limburg, and Jean H. Bebié. On December 2, 1977, Cermak filed a lawsuit against the heirs of Dr. Egli as well as against Limburg and Bebié to demand outstanding pension payments. Before the lawsuit became pending, Cermak reached an agreement with the widow of Dr. Egli, Christina Egli-Hohermuth, on February 16, 1978. Thereafter, Cermak only pursued the lawsuit against Limburg and Bebié, reducing the claim amount by one third.
The District Court and the High Court of the Canton of Zurich dismissed the claim, as they were of the opinion that the settlement between Cermak and Mrs. Egli also had a discharging effect for the remaining joint and several debtors Limburg and Bebié. Cermak appealed the judgment of the High Court.
Considerations
The Federal Supreme Court confirmed the decisions of the lower instances. It stated that according to the internal agreement between the joint and several debtors, Dr. Egli or his heirs alone had to cover the pension payments to Cermak, and Bebié could fully recourse against Mrs. Egli for any payments to Cermak. Cermak was aware of this constellation of interests when concluding the settlement with Mrs. Egli.
The Federal Supreme Court acknowledged that this constellation of interests could generally speak in favor of a full discharge of the joint and several debtors under Art. 147 para. 2 CO. However, it referred to the creditor's interest in maintaining his claims against the other joint and several debtors for the part not covered…