Facts
On July 2, 1971, Franz Günthner sold a property in Zurich-Aussersihl to Juventus AG for CHF 880,000. The purchase price was to be paid partially in cash (CHF 400,000) and partially through a mortgage bond in the first rank in favor of the seller (CHF 480,000). However, the contract did not mention that the property was already encumbered with five mortgage bonds in the first to fifth ranks, totaling CHF 385,000.
Juventus AG subsequently filed a lawsuit against Günthner, seeking a declaration that it was entitled to take over the property without the existing mortgage debts and that Günthner was obligated to discharge and delete these mortgage bonds. The Commercial Court of the Canton of Zurich granted the claim.
Günthner appealed the judgment of the Commercial Court, but the Federal Supreme Court dismissed the appeal and upheld the contested decision.
Considerations
In its reasoning, the Federal Supreme Court stated that according to the legal regulations, upon the sale of a property encumbered with liens, the lien and the debtor shall continue to exist unchanged, unless otherwise agreed. In the present case, it was clear from the contractual clause on the purchase price and its repayment that the buyer was to…