Facts
The present case concerns a voluntary public auction of co-ownership shares in two properties. The plaintiffs (A., B., C. and D.) auctioned off the co-ownership shares of the estate community of Johannes M. in the morning of February 15, 1986. Later the same day, G. auctioned off the co-ownership shares of the ward Kaspar M. The plaintiffs then asserted a co-owner's right of pre-emption under Art. 682 of the Swiss Civil Code (ZGB) in order to also acquire these shares.
The Federal Supreme Court rejected the assumption of a co-owner's right of pre-emption. According to the clear wording of the law, the right of pre-emption only belongs to those who are already co-owners. Since the plaintiffs were not yet registered as co-owners in the land register at the time of the second auction, they could not invoke this right.
A contractual right of pre-emption could also not be assumed. Such a right would have required a written agreement between the parties, which was not proven here.…