Facts
The dispute opposes the Graubündner Kantonalbank to the estate in bankruptcy of B. The bank requests that its mortgage right be recognized for a claim of 60,500 francs, resulting from B.'s tortious behavior towards a client of the bank. The mortgage had been constituted on October 3, 1977, and June 28, 1978, for an amount of 1,680,000 francs, in favor of the Schweizerische Bankgesellschaft. The bank argues that the mortgage guarantees all present and future claims of the bank against B.
The parties to the dispute are the Graubündner Kantonalbank (the plaintiff) and the estate in bankruptcy of B. (the defendant). The competent court is the 2nd Civil Court of the Swiss Federal Tribunal. The decision was rendered on March 10, 1982.
Considerations
The Federal Tribunal examined the question of whether the mortgage could be extended to a future claim, not foreseen at the time of the constitution of the mortgage. The bank argued that the mortgage guaranteed all present and future claims of the bank against B., including the claim of 60,500 francs resulting from B.'s tortious behavior.
The Federal Tribunal rejected this argument, considering that the mortgage could not be extended to a future claim not foreseen at the time of the constitution of the mortgage. The court considered that the constitution of a right of pledge for an indeterminate number of future claims was an unlawful infringement on personality rights and,…