Rejection of the action for reimbursement of advance payments made in the context of a conditional real estate sale

Facts

A. granted the spouses B. a right of pre-emption on a condominium (PPE) of a building located in Fribourg. The spouses B. accepted and promised to buy this share. The right of pre-emption was granted until August 1, 1992, and then extended until August 30, 1993. The spouses B. made advance payments to A. until that date. After August 30, 1993, the parties discussed the sale of the PPE under different conditions, but failed to reach an agreement. The spouses B. then requested the reimbursement of the CHF 72,800 in advance payments they had made.

Considerations

The Federal Tribunal considered that the agreement of June 3, 1991 constituted a conditional real estate sale. As the suspensive condition was not fulfilled, the sale did not take place and A. must repay the advance payments made by the spouses B. in accordance with the rules on unjust enrichment.

However, the action for reimbursement of the advance payments made after August 30, 1993 is time-barred under Art. 67 para. 1 CO, as…