Facts
This case concerns the transfer of a commercial lease and its consequences on an existing sublease contract.
The main lease, initially concluded between the property owner and [Y. AG], was transferred in favor of X. SA with effect from March 1, 2009. In accordance with Art. 263 para. 1 CO, the lease transfer is valid with the written consent of the landlord, without the need for the agreement of the subtenant.
After the transfer, X. SA became the new main tenant. There was an existing sublease contract between [Y. AG] and the appellants. However, following the transfer, [Y. AG] lost all right of use over the premises and was therefore no longer able to transfer this right of use to the appellants.
The appellants remained on the premises and continued to pay the rent. It must be inferred that a new sublease contract was concluded between the appellants and X. SA, the new main tenant.
Considerations
The central question is who, between [Y. AG] or X. SA, was entitled to terminate the sublease contract.
The Federal Tribunal considers that [Y. AG], at the time of the termination, had already lost the right of use over the premises following the lease transfer. It was therefore no longer able to transfer this right of use to the appellants. The termination given by Y. AG…