Joint and Several Liability of a Silent Partner for the Company's Debts

Facts

- B. and T. K. Wagner concluded a contract on 22 May 1948 to jointly operate a commercial enterprise, Vestalina, in the form of a simple partnership. B. provided a loan of CHF 30,000 to Vestalina and was to oversee the accounting, while Wagner was responsible for sales. - Between 26 August 1949 and 1 February 1951, Theodora SA granted several loans to Vestalina, with the guarantee of B. in addition to that of Wagner. The loan contracts and related confidential agreements were signed by Wagner, M. (an employee of Vestalina), and B. - Vestalina went bankrupt on 26 September 1952. Theodora SA then demanded payment of the loans from B., considering him a joint and several partner of Vestalina.

Considerations

- The Federal Tribunal considered that B. was a silent partner of Vestalina, but that third parties (here Theodora SA) could not treat him as such because they knew that B. did not want to appear as a partner. - However, B.'s signature on the loan contracts with the guarantee clause constitutes a distinct joint and several obligation from Wagner's debt, and not a mere suretyship. Although the wording does…