Action for Denial of Surety's Liability against Enforcement of Surety Claim by a Company Controlled by the Main Shareholder

Facts

The case concerns a dispute between Benjamin Wurm (Plaintiff) and LIBAG Liegenschafts- und Beteiligungs A.-G. (Defendant). Wurm was, together with Ernst Wild, the sole shareholder of Silva-Plastic A.-G., a surety towards the Swiss Bank Association for loans taken out by Silva-Plastic A.-G. After the termination of Wurm's employment with Silva-Plastic A.-G. and its insolvency, the Swiss Bank Association demanded that Wurm, as co-surety, pay his share of CHF 345,633.50. The Swiss Bank Association then assigned its claim against Silva-Plastic A.-G. to LIBAG, whose main shareholder was also Wild. LIBAG then pursued Wurm for the amount of CHF 356,291.25 as surety. Wurm filed an objection, which was however removed by provisional enforcement.

Wurm then filed an action for denial of the claim asserted against him. The lower instances dismissed the action for denial. Wurm maintained his request for protection of his action for denial in the appeal.

Considerations

The Federal Supreme Court held that even if the surety obligation were a joint and several suretyship or the Plaintiff were not released from the suretyship, the enforcement of the surety claim by LIBAG would constitute an abuse of rights. This is because both the principal debtor Silva-Plastic A.-G. and the assignee creditor LIBAG were economically identical with the sole shareholder…