Dissolution of a simple partnership for the lifetime of a partner

Facts

The present case concerned a simple partnership that was founded in 1969 by Father [A.] and his sons [B.], [C.], [D.] and E. The partnership agreement provided that the partnership would exist for an indefinite period, but at least until the death of Father A. In April 1977, partners [C.], [D.] and [E.] terminated the agreement as of December 31, 1977. Father [A.] and son [B.] did not accept the termination and insisted on the continuation of the contractual relationship. Thereupon, [D.] and [E.] sued for a declaration of the dissolution of the partnership as of December 31, 1977 and for liquidation by all partners.

Considerations

The Federal Supreme Court first had to clarify whether Art. 546 para. 1 CO, which allows for an ordinary termination of the partnership with six months' notice, is mandatory or whether the parties can deviate from it. It concluded that this provision is of a dispositive nature and that the parties could therefore agree on a minimum contract duration until the death of Father A.

However, it must be examined whether the parties actually had a common will deviating from the contract text to declare the partnership irrevocable until the death of the father. The lower courts must…