Voidability of a purchase contract with grant of right of residence in favor of the debtor

Facts

By a publicly notarized purchase contract dated July 1, 1994, X. sold his property to his wife Y. In this process, X. was granted a lifelong right of residence on the property. On July 5, 1995, bankruptcy proceedings were opened against X. The bankruptcy administration brought an avoidance action against Y. and X. pursuant to Art. 285 et seq. DEBA.

The Cantonal Court ordered Y. to pay CHF 305,000.- to Bank Z., Zug, against the simultaneous deletion of the right of residence in favor of X. Bank Z. appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court held that the purchase contract of July 1, 1994 is entirely voidable pursuant to Art. 288 DEBA. A limitation of the voidability to the grant of the right of residence is not appropriate, as this cannot be assessed independently of the purchase contract.

Although the Defendant 2 (X.) is not passively legitimized, as he cannot be regarded as a bad faith third party…