Facts
In this case, it was about a publicly certified purchase option contract between [F.] and V. regarding a property. On the same day, the parties also concluded a written loan agreement, in which V. undertook to grant [F.] a loan amount of 8 million Swiss francs. To secure the loan, a mortgage was placed on the property.
[F.] later filed a lawsuit on the grounds that the purchase option contract was null and void because the loan agreement had not been publicly certified. The cantonal court upheld the claim and declared both contracts null and void.
V. then appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court stated that according to Art. 216 para. 2 CO, a contract by which a purchase option on real estate is created requires public certification for its validity. Both the objectively and subjectively essential contractual points are subject to the formal requirement.
However, the formal requirement only extends to agreements that by their nature directly concern the content of the real estate purchase contract and affect the relationship between performance and consideration. Objective ancillary agreements only fall under the formal requirement due to subjective essentiality if they fall within the framework of the purchase contract.
In the present case, the loan did not affect the relationship between performance and consideration of the purchase option contract, as it was granted under…