1C 11 6 • KG LU 1C 11 6 AI generated

Extinction of Retention Right Upon Provision of Bank Guarantee Security

Case Number 1C 11 6

Court / Authority Kantonsgericht · 1. Abteilung

Jurisdiction

Switzerland · Canton of Lucerne (CH-LU)

Decision Date 2011-05-04

Outcome Dismissed

Open official source Entscheidsuche mirror Machine-readable Markdown (.md)

Legislator summary

AI generated

The court addressed the extinction of a retention right under Articles 895 and 898 of the Civil Code when the underlying claim is secured. The retention right, which allows a creditor to withhold movable property until satisfaction of a claim and permits its realization if the claim is not adequately secured, ceases upon the provision of sufficient security. The court found that a bank guarantee, even one conditioned on the presentation of a final judgment or settlement to secure the claim, constituted sufficient security, reasoning that the creditor would need a judgment to enforce even an undisputed claim, and thus the security was not inadequate because it required such proof. Since the debtor provided a new, unlimited bank guarantee, the retention right of the creditor had already lapsed upon the filing of the security application.

Legislator headnote

AI generated

Art. 895 ZGB, Art. 898 ZGB, Art. 372 OR, Art. 895 Abs. 1 ZGB, Art. 898 Abs. 1 ZGB; Extinction of Retention Right Upon Provision of Bank Guarantee Security: The retention right, which allows a creditor to withhold movable property until satisfaction of a claim and permits its realization if the claim is not adequately secured, ceases upon the provision of sufficient security. The court found that a bank guarantee, even one conditioned on the presentation of a final judgment or settlement to secure the claim, constituted sufficient security, reasoning that the creditor would need a judgment to enforce even an undisputed claim, and thus the security was not inadequate because it required such proof. Since the debtor provided a new, unlimited bank guarantee, the retention right of the creditor had already lapsed upon the filing of the security application.