Facts
By a publicly certified contract dated August 8, 1973, the Ettlin brothers granted a purchase option on a plot of approximately 2300 m2. In 1977, the owner Britschgi sold another part of the plot, including the 1300 m2 still subject to the purchase option, to Amrein. Amrein then sued the Ettlin brothers to have the purchase option declared null and void and deleted from the land register.
The Cantonal Court and the High Court of the Canton of Obwalden upheld the claim. They found that the part of the property affected by the purchase option was only insufficiently specified in the contract and that the attached site plan had not been properly certified, so that the contract was not duly certified.
Considerations
Pursuant to Art. 216 para. 2 CO, a contract by which a purchase option on real estate is created requires public certification for its validity. The concept of public certification is a matter of federal law, so that the cantonal regulation must not only observe its limits, but also meet certain minimum requirements.
This includes in particular that the legally prescribed form must relate to all facts and declarations of intent that are essential for the substantive legal content of the legal transaction. This also applies to the precise designation of the part of the property covered by the contract.
In the present case, the part of the property affected by the purchase option was only insufficiently described in the contract as "a plot of land of approximately 2300 m2" without further specifying its spatial location within plot no. 440. The High Court found that the dispute could not be resolved even by taking into account the agreed purchase price and the zoning plan of the municipality.
The sketch plan attached to the contract was also not properly certified, as it was not signed in…