Facts
The case concerns the transfer of a real estate property by Mrs. Lina Schluep-Herrmann to her daughter Helene Bassin in 1949. Mrs. Schluep-Herrmann transferred a residential and commercial building to her daughter for the price of 25,000 Swiss francs, with the daughter having to assume various encumbrances such as a right of pre-emption, rights of residence, and a usufruct.
After the death of Mrs. Schluep-Herrmann in 1956, her five other children sued Helene Bassin. They claimed that the value of the property had significantly exceeded the transfer price, and therefore the transfer constituted a gratuitous transfer within the meaning of Art. 626 of the Swiss Civil Code (ZGB), which had to be equalized.
Considerations
The Federal Supreme Court (Bundesgericht) held that a gratuitous transfer within the meaning of Art. 626 ZGB can exist if there is a significant disproportion between the performance and the consideration, even if the heir's performance is not entirely gratuitous. The relevant factors for the assessment are the circumstances at the time of the conclusion of the contract.
The Federal Supreme Court set aside the judgment of the lower court and remanded the case, so that the market value of the property in 1949, taking into account the right of pre-emption, the rights of residence, and the usufruct, can be newly determined. If this results in a…