Facts

The dispute concerns the legal qualification of a security contract concluded on 31 December 1982 between [H.] and the American company U. Company. The latter had granted credits to the company [N. AG] and [H.], as the delegate administrator of [N. AG], had stood surety for these credits. The bank then claimed payment of these credits from [H.] on the basis of this security contract. The cantonal instances qualified the contract as a guarantee, rejecting the defendant's argument that it was a void suretyship due to non-compliance with the legal forms. [H.] filed an appeal for reform against this judgment.

Considerations

The Federal Tribunal considers that the contract must be qualified as a suretyship and not as a guarantee. Indeed, the following elements indicate the accessory nature of H.'s commitment:
  • The content of H.'s performance is identical to that of the principal debtor ([N. AG]) and depends entirely on the loan contract concluded between [N. AG] and the bank.
  • [H.] has jointly taken over the obligation towards the bank together with [N. AG], which is incompatible with an autonomous guarantee.
  • The fact that [H.] cannot exercise…