Facts
Mrs. Margrit Kull has been the owner of an agricultural property since August 2, 1956. By a publicly certified contract dated October 19, 1960, she granted the merchant Walter Bräm a transferable and inheritable right of purchase on this property, valid until December 31, 1966, which was registered in the land register. On December 29, 1966, Bräm declared that he was exercising this right of purchase. However, Mrs. Kull refused to cooperate in the transfer of the property to the land register, as she considered the purchase option contract concluded within the prohibition period of 10 years according to Art. 218 CO to be null and void.
By submission dated January 18, 1967, Bräm filed with the single judge in summary proceedings at the District Court of Zurich the requests to order Mrs. Kull to cooperate in the transfer of the property to him in the land register and to instruct the Land Registry Office of Uster not to make any land register dispositions by the defendant regarding the property. The single judge issued the requested order, and the Cantonal Court of Zurich dismissed the defendant's appeal against this decision.
The defendant has filed an appeal against the decision of the Cantonal Court to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the dispute between the parties over the fulfillment of the purchase option contract is a civil dispute and is therefore subject to appeal. The first-instance decision protected by the Cantonal Court is a final decision, against which the defendant is therefore entitled to file an appeal.
The Federal Supreme Court then examines whether the granting of the purchase option within the prohibition period of Art. 218 CO is permissible. It finds that according to the case law of the Federal Supreme Court, the conclusion of a purchase option contract that allows the entitled party to make use of his right before the expiration of the…