Guarantee (Switzerland)
In Switzerland, the guarantee is a unilaterally binding contract by which the surety undertakes to the creditor of a third party (the so-called main debtor ) to guarantee the fulfillment of the third party's obligations . The creditor wants to protect himself with the guarantee in the event of his debtor's insolvency . Most often the third party is a borrower and the creditor is a credit institution granting the loan .
In Switzerland, the guarantee is regulated in Title Twenty (Art. 492-512) OR and is ancillary according to Art. 492, Paragraph 2 OR . Accordingly, the guarantee only arises when the liability has arisen and expires when the liability has also expired. Guarantee documents must be drawn up in writing (Art. 493 Paragraph 1 OR) and also publicly notarized if the surety is a natural person (Art. 493 Paragraph 2 OR). If the state or a company is the guarantor, there is no obligation for public notarization (Art. 493 Para. 3 OR). It also does not apply if the liability amount does not exceed CHF 2,000. As a rule, the guarantee is also here the objection of advance action (Art. 495, Paragraph 1 OR). The main components of the document are the maximum liability amount of the surety as well as any joint and several surety liability . This guarantor for the principal is in Art. 497 OR, the counter-guarantee and counter-guarantee 498 OR in Art. Regulated. These criteria must be handwritten if the surety is a natural person and no public certification is required. In this case, it is a qualified written form. If a declaration of guarantee does not contain the liability amount or if another formal requirement is violated, the guarantee is void . An unlimited guarantee is therefore not permitted.
The guarantee liability arises if the debtor in bankruptcy is advised moratorium received or the creditor can not demand for similar reasons his money from the debtor (Art. 495 para. 1 CO). The surety is therefore only liable on a subsidiary basis. If it is a so-called solidarity guarantee , the guarantor may already after an unsuccessful recovery be prosecuted by the debtor (Art. 496 OR).
The surety is entitled and obliged to counter the obligee with the objections to which the principal debtor or his heirs are entitled and which are not based on the principal debtor's insolvency (Art. 502 OR). The guarantee expires when the main debt expires (Art. 509 OR), either when the debtor pays his debt or the surety pays the debt. In the case of a guarantee, the rights of the obligee are transferred to the surety in accordance with Art. 507 OR.
Under certain circumstances it can cause problems in practice to distinguish a guarantee according to Art. 492 ff. OR from a simple solidarity debt according to Art. 143 ff. OR. If the former is accepted, this may mean, due to the strict validity requirements of the guarantee, that the person concerned is not liable. For this purpose, case law has developed the rule that, in the event of doubt, to protect legally uninformed persons, a guarantee and not solidarity guilt must be assumed. Consequently, the strict validity requirements of the guarantee are necessary for liability to arise.
