Validity of a 30-year pre-existing right of pre-emption contract under the former law

Facts

This case concerns the validity of a 30-year right of pre-emption contract concluded under the former law. The parties involved are X. (the plaintiff) and C. SA (the defendant). The dispute was brought before the IInd Civil Division of the Federal Tribunal.

According to the former Art. 683 para. 2 CC, rights of pre-emption and redemption cease, in all cases, ten years after their registration in the land register. However, the case law has held that this ten-year period only applies to the in rem effects of the contract, and that the parties could agree on a right of pre-emption of an indefinite duration, within the limits of Art. 2 and 27 CC.

Art. 683 CC was repealed in 1991 and replaced by a new Art. 216a CO, which provides that rights of pre-emption may only be concluded for a maximum duration of ten years and must be registered in the land register.

Considerations

The central issue is whether the new Art. 216a CO applies retroactively to the right of pre-emption contract concluded in 1971 for a duration of 30 years.

The Cantonal Court held that the new Art. 216a CO could not apply retroactively to this contract, based on Art. 1 and 3 Fin. Tit. CC which govern transitional law. According to the prevailing doctrine, the new Art. 216a CO cannot have retroactive effect on the agreed duration of existing…