Facts
In the present case, the issue was the exercise of a right of pre-emption in solidum by several sisters after one of them had withdrawn from the simple partnership. The heirs of August Neuhaus had agreed in 1983 that the property Art. 888 of the land register Plasselb would be transferred to six heirs as co-owners and the remaining five heirs would have a pre-emption right for ten years. In 1986, the six co-owners sold the property to the municipality of Plasselb. Thereupon, four of the five sisters entitled to the pre-emption right declared that they were exercising the pre-emption right in solidum. Since the sellers disputed this, the municipality of Plasselb was registered as the owner.
Three of the four sisters who had exercised their pre-emption right filed a lawsuit against the municipality of Plasselb and demanded that the ownership of the property be transferred to them. In the hearing, one of the four plaintiffs, Josephine Svoboda-Neuhaus, withdrew her lawsuit and declared that she had withdrawn from the community of siblings.
Considerations
The Federal Court held that the four sisters who had exercised the pre-emption right formed a simple partnership within the meaning of Art. 530 et seq. of the Swiss Code of Obligations. Since the pre-emption right was exercised in solidum, the resulting claim for transfer of ownership belonged to all partners jointly. As a rule, therefore, all joint and several creditors must sue jointly.
However, it can be contractually agreed that the partnership will continue among the remaining partners after the withdrawal of a member. Through the withdrawal of…