Facts
On 20 July 1992, Bank X. provided a simple and time-limited guarantee to the plaintiff, up to a maximum amount of CHF 463,000, for the obligations of the newly established company Y. Immobilien GmbH arising from its commercial lease contract in Lucerne. On 7 January 1994, a payment order was served on the principal debtor in the plaintiff's debt collection proceedings. On 24 February 1994, the principal debtor requested a composition moratorium. On 25 February 1994, the plaintiff filed for bankruptcy against the principal debtor. On 1 March 1994, the opening of the bankruptcy was suspended pending the decision on the composition moratorium. On 11 July 1994, the plaintiff informed the surety that it was putting the surety in default due to the insolvency of the principal debtor. On 20 July 1994, the surety declared that it was unable to satisfy the plaintiff's claims, as the bankruptcy of the principal debtor had not yet been opened. On 28 July 1994, the plaintiff confirmed to the surety that it was putting the surety in default and summoned it before the justice of the peace on 13 August 1994. The conciliation attempt on 25 August 1994 failed. On 7 December 1994, the bankruptcy of the principal debtor was opened. On 22 March 1995, the plaintiff filed an action against the surety for payment of CHF 463,000.Considerations
The Federal Tribunal considers that Art. 510(3) CO applies, in the case of a simple guarantee, only to the principal obligation guaranteed by the surety and not to the subsidiary obligation arising from the guarantee. The duty to seek out the debtor of the principal obligation within the prescribed time limit and to continue the debt collection proceedings diligently does not concern the obligation arising from the guarantee.
Subject to a different agreement binding the parties, it is…