Rejection of the guarantor's plea of set-off when the principal debtor has waived set-off

Facts

This decision concerns a dispute between A. (the guarantor) and Bank X. (the creditor). The guarantor contested having to pay the guaranteed claim, on the grounds that the principal debtor had suffered damage from the creditor and could therefore invoke a claim for damages in set-off. However, the principal debtor had expressly waived set-off in the loan agreement. The cantonal court considered that the guarantor, having been aware of this waiver at the time of the conclusion of the suretyship, could not rely on it to refuse payment.

Considerations

The Federal Court upheld this decision. It ruled that Art. 502 para. 2 CO, which allows the guarantor to invoke an exception of the principal debtor even if the latter has waived it, applies by analogy to the guarantor's right to refuse payment under Art. 121 CO. However, this rule does not apply when the guarantor was aware of the principal debtor's waiver at the time of the conclusion of the suretyship, as he cannot then rely on a unilateral change in his situation.

Furthermore, Art. 492 para. 4 CO does not prevent the guarantor…