Facts
In this case, Bank X. acquired two mortgage deeds to secure its claims against W. L. The parties had agreed that the bank could enforce these mortgage claims without notice. When the bank subsequently demanded repayment of these claims, W. L. contested their maturity and the existence of the security interests.
Considerations
The Federal Tribunal ruled that the clauses relating to termination are not part of the objectively essential elements of the pledge contract. Their stipulation and modification therefore do not require the authentic form. The parties could therefore agree, in a private document, that the mortgage claim could be demanded without notice, regardless of the terms provided in the title.
According to recent case law and doctrine, the ancillary elements of a contract subject to a solemn form can be informally modified, provided they do not contradict the…