Facts
Widow Katharina D. passed away on May 22, 1930 and left her nine children a residential building in Herisau as the main asset. One son, Louis, renounced his inheritance claim. The remaining eight children jointly took over the house at the accounting value of CHF 12,000 according to the official partition deed dated July 23, 1930 and have since been registered in the land register as co-owners of the property.
On February 7, 1932, the brothers Gottlieb and Paul D. issued a declaration to their daughter Ida D., in which they agreed to the "sale" of the house to Ida D. for CHF 14,000, subject to the condition that the house be used for her personal purpose and not as a speculative object. A few years later, the other siblings also signed this document.
After disputes between Ida D. and her brother Paul D., in January 1957 the brothers Gottlieb and Paul D. filed a lawsuit against Ida D., seeking to have the joint ownership of the eight siblings in the property recognized. Ida D. filed a counterclaim for the award of sole ownership of the property.
Considerations
The Federal Court concluded that the declaration of February 7, 1932 does not constitute a valid inheritance partition contract that would justify the transfer of sole ownership to Ida D. While according to Article 634 paragraph 2 of the Swiss Civil Code (ZGB), the transfer of real estate ownership within the framework of an inheritance partition contract can be made in simple written form, the prerequisite for this is that a contract signed by all parties is available, from which the intention to transfer ownership is clearly evident.
In the present case, the declaration of February 7, 1932 was obviously not a partition contract, but merely a "certificate" by Gottlieb and Paul D. that they - subject to reservations - agreed to the "sale" of the house to Ida D. The subsequent signatures of the other siblings could no longer establish the consensus of all parties…