Facts
Mrs. Widow Lina Nigg-Küttel had granted a pre-emption right in favor of her nephew Josef Müller on two properties in Gersau in her will. After her death, the property passed to her brother Alois Küttel, who had the pre-emption right registered in the land register. Küttel wanted to sell the properties to the highest bidder, but only offered Müller a small compensation for waiving the pre-emption right. Thereupon, Küttel concluded a building lease contract with the tenant Karl Rigert on the properties in order to circumvent the pre-emption right.
Müller asserted his pre-emption right, as he believed that the building lease contract constituted a concealed purchase contract. The Cantonal Court of Schwyz dismissed the claim, whereupon Müller appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court decided that the conclusion of the building lease contract between Küttel and Rigert should be considered a case of pre-emption, as the contracting parties intended to circumvent the plaintiff's pre-emption right. Although the contract formally concerned the establishment of a building lease, Küttel effectively transferred all essential powers of the owner to Rigert, so that Rigert came close to an owner's position. Furthermore, the annual building lease fee was redeemed by a lump sum shortly after the conclusion of the contract, which indicated a concealed purchase contract.
Since Küttel and Rigert pursued the goal of a sale while…