Facts
On 20 March 1978, H., chairman of the board of directors and majority shareholder of M. SA, acted as a joint and several surety for the bank X to guarantee the repayment of all sums that M. SA owed or might owe to the bank in the future, regardless of the reason. The bank had granted M. SA a credit of 100,000 francs in the form of a current account in May 1976. The creditor denounced the current account on 9 September 1988 and claimed from the principal debtor payment of the balance as of 30 June 1988, i.e. 60,900 fr. 55, plus interest and various commissions.
The Civil Court of the Cantonal Court of the canton of Vaud condemned M. SA to pay to the plaintiff the sum of 60,900 fr. 55 plus interest, but dismissed the plaintiff's action against H. The bank appealed against this judgment.
Considerations
The Federal Court examined the validity of the guarantee in question. According to art. 492 para. 1 CO, a guarantee is a contract by which a person undertakes to guarantee to the creditor the payment of the debt contracted by the debtor. The principal debt may be current, future or conditional. However, the guarantor's commitment must be sufficiently determined or determinable at the time of conclusion of the contract.
In this case, the guarantee guarantees « all sums that M. SA currently owes and may owe to [the bank] in the future, regardless of the reason ». This formulation does not designate the set of guaranteed debts in a sufficiently precise manner, as it does not allow for an exact idea of the extent of the guarantor's commitment and, consequently, of the risk incurred.
However, the guarantee deed appears to be sufficiently precise insofar as it mentions the debts resulting from the existing commitments of the principal debtor. The use of extrinsic elements indeed makes it easy to determine that it concerns debts arising from the current account opened by the plaintiff for M. SA in 1976.
The Federal Court therefore admitted the partial nullity of the guarantee, insofar as it relates to the…