Claim for Reimbursement of a Black Payment in a Real Estate Purchase Despite Repeal of the Federal Decree on Measures Against Land Speculation by the Federal Act on the Preservation of the Peasant Land Ownership

Facts

The plaintiff Brägger purchased an agricultural homestead from the defendant Eberle in 1949. At that time, the Federal Council Decree of January 19, 1940/November 7, 1946 on Measures Against Land Speculation (BMB) was still in force. Brägger claimed that he had to pay the defendant an additional 15,000 francs beyond the recorded and officially approved purchase price. This black payment was null and void under Art. 42 para. 2 BMB and could therefore be claimed back by him.

At the time the action was filed in 1954, the BMB was no longer in force, but had been replaced by the Federal Act of June 12, 1951 on the Preservation of the Peasant Land Ownership (EGG). The defendant denied the black payment and argued that even if such a payment existed, the action must be dismissed for legal reasons.

Considerations

The Federal Court held that the legal relationships established before the EGG came into force are to be assessed according to the old law, i.e. the BMB. The EGG does not contain any intertemporal law provisions, so the general legal principle pursuant to Art. 1 of the Final and Transitional Provisions of the Civil Code applies, according to which the facts that occurred before the entry into force of the new law are to be assessed according to the old law.

Since the facts of the black payment were realized under the BMB, it is to be assessed according to the provisions of the BMB. Art. 42 para. 2 BMB provides that a black payment is null and void and can be claimed back within 10 years. This claim for reimbursement is legally a claim for unjust enrichment and is therefore subject to the old law.

The defendant argues that the reimbursement of the black payment violates Art. 66 CO, as it was made with the intention of achieving an…