Facts
The plaintiff (A.) concluded an agreement with B. on 25 September 2003 regarding the acquisition of 5% of the share capital of company Y. AG for a purchase price of EUR 400,000. According to Article 2 of the agreement, the plaintiff had the right until 1 October 2004 to retrocede 3% of the shares to B. for a price of EUR 400,000. This option was secured by a guarantee of EUR 400,000 issued by the defendant (X. USA Ltd.) and valid until the end of 2007. On 21 December 2007, the plaintiff informed the defendant of his intention to invoke the guarantee, but the defendant refused on 11 January 2008 on the grounds that the notification had not been made in time. On 28 January 2008, the plaintiff filed a conciliation request with the justice of the peace in T., but designated the company X. (Europe) AG as the defendant instead of the actual defendant. On 11 March 2008, a conciliation hearing was held and the conciliation order was issued the same day. On 5 June 2008, the plaintiff filed an action with the Commercial Court of the Canton of Zurich, concluding that the defendant be ordered to pay him EUR 400,000 plus interest at 5% from 1 February 2008, against the transfer of the shares in accordance with the agreement of 25 September 2003 (3% of Y. AG). The Commercial Court dismissed the claim on 15 June 2010, finding that the guarantee had not been invoked in time within the meaning of Art. 510(3) CO and that the claim was therefore time-barred.Considerations
3.1 The Federal Tribunal confirms its consistent case law that Art. 139 CO applies by analogy to preclusive time limits under federal civil law. Although the wording of this provision only covers limitation periods, the ratio legis calls for an analogous application to preclusive time limits, in order to protect the creditor who has asserted his claim within the time limit, but whose action has been dismissed on formal grounds. 3.2 Art. 139 CO applies even in the absence of a…