Facts
The Hotel H. in S. originally belonged to L. AG. As part of renovation and reconstruction work, the property was divided into 30 condominium units, with the hotel building becoming condominium unit Gbbl. x-y. Through a purchase agreement dated March 30, 1988, L. AG sold Hotel H. to M. AG and subsequently leased it back.
On April 19, 1996, L. AG entered into a loan and pledge agreement with E., under which E. was granted a pledge on the major inventory of Hotel H. After the loan became due, the hotel furniture was privately auctioned on July 3, 1997, where E. acquired the entire major inventory for a lump sum of CHF 60,000.
On October 30, 2002, the heirs of the deceased E. concluded an "Assignment and Transfer Agreement" and a "Participation Agreement" with Y. GmbH and X., in which the E. estate community assigned, among other things, the assertion and judicial enforcement of its claims against V. and W. to Y. GmbH and X.
On July 26, 2004, Y. GmbH and X. filed a claim against V. and W. and demanded the restitution of the hotel furniture (major inventory) located in Hotel/Restaurant H.
Considerations
The Federal Supreme Court dismisses the appeal of Y. GmbH and X. to the extent that it is entered upon. It reaches the following conclusion:
A transfer of possession by way of possession instruction pursuant to Art. 924 para. 1 CC is excluded, as the defendants have never recognized the control of the E. estate community over the disputed furniture.
A transfer of possession by way of longa manu traditio…