Reclamation of the guarantee amount by the guarantor against the beneficiary

Facts

X. AG (plaintiff and appellant) and Y. AG (defendant and respondent) concluded a construction guarantee insurance contract on 12/13 April 2006. X. AG issued a guarantee of up to CHF 145,286.90 to [Z. AG], which was payable on first demand and waiving any objections and defenses from the underlying contract between [Y. AG] and Z. AG. On 19 December 2006, [Z. AG] demanded payment of the guarantee amount, as [Y. AG] had not fulfilled its contractual obligations. X. AG paid the guarantee amount on 2 August 2007, after [Z. AG] had specified the contractual breaches of [Y. AG] on 25 July 2007. Subsequently, X. AG claimed the amount of CHF 145,286.90 from [Y. AG], which was rejected. X. AG then filed a lawsuit.

Considerations

The Federal Supreme Court set aside the judgment of the lower court and remanded the case for a new decision. It stated that according to the established case law of the Federal Supreme Court, the guarantor can only raise the defenses that arise from the guarantee contract. The wording of the guarantee clause alone is decisive. This principle of strict guarantee follows from the independence of the guarantee from the underlying legal relationships.

The Federal Supreme Court clarified that the beneficiary is not obliged to…