Facts
On February 28, 1970, Heinz Jäger, a hotelier in Arosa, executed a public deed establishing condominium ownership of his property. By contract dated February 9, 1971, he sold a 6/1000 co-ownership share to Renate Klitzsch, who was unmarried at the time but later married Dr. Ronald Seka. On February 6, 1973, Jäger amended the deed of establishment, which resulted in a reduction of the plaintiff's share from 6/1000 to 5/1000. The plaintiff refused to consent to this amendment.
On August 14, 1973, Renate Seka-Klitzsch filed a claim for performance of the purchase contract. At the same time, she obtained a provisional land registry restriction. On October 9, 1973, bankruptcy proceedings were opened against Jäger. The bankruptcy administration refused to fulfill the purchase contract. The plaintiff filed her claim in the bankruptcy, without waiving the performance of the contract.
The District Court partially upheld the claim and awarded the plaintiff a 5/1000 co-ownership right. However, the Cantonal Court overturned this judgment and dismissed the claim. It was of the opinion that the plaintiff's claim for performance had been converted into a monetary claim in accordance with Art. 211 para. 1 of the Federal Debt Enforcement and Bankruptcy Act (SchKG), as the land registry restriction did not have in rem effect.
Considerations
The Federal Supreme Court dismissed the plaintiff's appeal. It stated that a restriction on disposition recorded in the land register in accordance with Art. 960 para. 1 no. 1 of the Swiss Civil Code (ZGB) establishes a real right in addition to the obligatory right, which also has effect in the debtor's bankruptcy. However, the measure obtained by the plaintiff was merely a land registry restriction under cantonal law, which did not have in rem effect and could not protect the plaintiff's claim for performance in the bankruptcy.
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