Exercise of Forming Rights by the Community of Heirs in Respect of Farm Leases

Facts

On 5 October 1989, X. leased his agricultural operation to his son Y. (the defendant) for a period of nine years, with a possibility of termination after one year, at the earliest on 30 April 1998. On 17 July 1995, X. died, leaving a wife and eleven children, including the defendant. On 14 March 1997, the defendant's mother and siblings (the plaintiffs) terminated the farm lease as of 30 April 1998. The defendant considered this termination to be null and void. The plaintiffs then requested the rent tribunal to declare the termination valid, but their request was rejected on 7 August 1998. The cantonal court confirmed this decision on 16 December 1998.

Considerations

The Federal Court dismissed the appeal filed by the plaintiffs against the cantonal court's decision. According to Article 602 paragraph 1 of the Swiss CC, the heirs form a community of heirs and jointly exercise the rights of the inheritance, subject to contractual or legal powers of representation and administration. As a general rule, an heir cannot act alone for the estate, except in urgent cases.

However, case law has relaxed the principle of unanimity when the interests protected by law are not at stake between the community of heirs and a third party, but between the community of heirs and an heir. In this case, the heirs may act without the consent of the heir concerned, provided that all heirs are parties to the proceedings.

However, when legal acts are concluded between the community of heirs and an heir, a derogation from the principle of unanimity is not justified. The heir who leases or purchases an object of the estate participates in the act both as a member of the…