OGH: On the repayment of debts in enforcement proceedings
Claims under the law on bills of exchange against the payee become time-barred within three years from the expiry date; this period also applies to the payee's bill drawer.
In the present case, the plaintiff granted the drawee an advance on current account to finance the business of her company. It was stipulated that the guarantee would not expire by temporary repayment of the credit while the current account relationship continued, that it would not be restricted and cancelled by the establishment and recognition of the balance and that it would remain in full force and effect until the end of the business relationship with the principal debtor or until the claim had been paid in full. The guarantee remained in force even in the event of a change of debtor. The defendant again signed a guarantee declaration, a bill of exchange obligation declaration and a blank bill of exchange as drawer.
Insolvency proceedings were subsequently opened against the company's assets. The plaintiff applied for the issuance of a bill of exchange payment order, presenting the bill of exchange against the defendant as drawer for the drawee. The defendant then objected to the statute of limitations.
The Austrian Supreme Court considered that: The bill of exchange guarantee is a form of guarantee regulated by special law in the Uniform Bill of Exchange Act (Einheitliches Wechselgesetz, WG) and constitutes a separate contract under exchange law between the bill creditor and the bill drawer.
In principle, the provisions of civil law on guarantee do not apply to the bill of exchange guarantee. Rather, the assumption of a bill guarantee only gives rise to liability under civil law if this has been agreed.
According to Art 32 WG, the drawer of a bill of exchange is liable in the same way as the person for whom he has guaranteed. Art 70 WG provides that claims under a bill of exchange against the payee become time-barred three years from the date of expiry. In the case of a blank bill of exchange, which is issued without setting the date of issue and expiry, the statute of limitations does not begin to run on the date of the actual issue of the blank bill of exchange, but only from the expiry date set later. In this context, the use of a blank bill of exchange in order to give a debt that is already time-barred the effect of a debt that is not time-barred by filling it in is inadmissible.
In the present case, since the payee's liability did not become due until the drawee's restructuring proceedings were commenced, the expiry date inserted on the bill of exchange is within the statute of limitation for the debt for which the bill was given. Therefore, the plaintiff cannot be accused of an immoral filling of the blank bill of exchange. Thus, the claims under the law on bills of exchange against the payee become time-barred within three years from this expiry date. This time limit also applies to the payee's drawer.
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