Facts
Company [T. AG] had contractually committed to deliver an evaporation and condensation installation "Mini 8067" to company M. Co. by the end of February 1981. However, on 24 September 1980, the Federal Office of Energy Economy issued an immediate export prohibition on the "Mikro 8062" installation and its accessories. [T. AG] then ceased its work and did not deliver the installation as agreed. M. Co. therefore brought an action against bank K., which had provided a guarantee for the payment of the second instalment of the contract.
The cantonal court granted M. Co.'s claim, finding that [T. AG] had not fulfilled its contract in a culpable manner and that the conditions for the bank's guarantee liability were therefore met. [T. AG] and the bank appealed against this judgment.
Considerations
The Federal Tribunal dismisses the appeals. It considers that the impossibility of performing the contract due to the export prohibition only releases the debtor from its obligations if it is not responsible for it. However, in this case, [T. AG], as a company specialised in nuclear technology, should have foreseen the possibility of intervention by the federal authorities based on Art. 8 para. 2 of the…