Facts
Bank Y. had acted as surety in 1992 for the rental obligations of a newly created company towards the lessor, company X. AG. The maximum amount of the surety was CHF 463,000 and its duration was limited until August 1, 1994. As the principal debtor had not fulfilled its contractual obligations, the lessor had a bill of exchange issued in its favor for the unpaid rents, due on December 31, 1993 for an amount of CHF 342,289.20. After the opening of the bankruptcy of the principal debtor, the lessor sued the surety bank for payment of the surety. The lower courts dismissed the claim on the grounds that the lessor had acted too late against the surety after the opening of the bankruptcy of the principal debtor, thus not respecting the requirement of Art. 510 para. 3 CO of proceedings initiated and pursued without significant interruption.Considerations
The Federal Tribunal considers that the requirement of promptness of Art. 510 para. 3 CO concerns only the principal claim, and not the surety claim. Except for a contrary agreement, it is sufficient that the creditor notifies the surety within four weeks following the proceedings against the principal debtor that it intends to assert the surety. An action within a specified time limit is not necessary for the continuation of the rights against the surety. In the present case, the lessor has therefore asserted the surety in a timely manner within the meaning of the law.
The legal structure of the own bill of exchange differs from that of the drawn bill of exchange. The own bill of exchange is an abstract debt acknowledgment subject to the rules of securities law, but which does not release the debtor from the underlying obligation. As long as the bill of exchange is not endorsed to a bona fide third party, the claim of the original beneficiary…