Facts
On May 19, 1951, Albert Oberholzer purchased from his father in Seelmatten-Turbenthal a residential house, a workshop with a milling shed, and garden land. The purchase contract included a pre-emptive right for the seller or the respective owner of the agricultural homestead in Seelmatten for the duration of the next ten years.
After the death of the seller, the pre-emptive right was noted in the land register on May 19, 1951, but was deleted on October 20, 1966, due to the expiration of the time period. In the spring of 1967, Albert Oberholzer sold the properties to third parties.
Emil Oberholzer, who had acquired the paternal homestead on September 28, 1951, then sued his brother Albert for damages, as he was of the opinion that the defendant had violated his pre-emptive right.
Considerations
The Federal Court states that according to the previous case law, pre-emptive rights, rights of purchase, and rights of repurchase can generally be established for an unlimited period, even if the statutory period of ten years under Art. 681 para. 1 and 683 para. 2 of the Swiss Civil Code (ZGB) is exceeded.
However, the duration of the pre-emptive right must be considered an essential part of the contract if there is no consensus of…