Facts
On July 2, 1948, the farmer Franz Schüpfer-Küng concluded a "Real Estate Transfer and Annuity Contract" with his son Franz Schüpfer-Meier. In this contract, the father transferred his properties in Rickenbach to the son, while the son undertook to provide lifelong maintenance for the father. The contract was entered in the register of the municipality of Rickenbach, but the preparation by the municipal council, which at the time replaced the entry in the main register, was omitted. The father no longer considered himself the owner, but continued to receive the benefits provided for in the contract from his son. After the son's death in 1959, the father withdrew the registration of the contract, whereupon the son's heirs filed a lawsuit to have the properties transferred to their ownership.
The defendant (father) claimed that the claims from the contract were time-barred. However, the lower instances dismissed this plea, as they considered the withdrawal of the registration to be an abuse of rights. The Federal Supreme Court confirmed this assessment.
Considerations
The Federal Supreme Court stated that the decedent's claim for the transfer of the properties would have been time-barred after ten years according to Art. 127 CO. The limitation period began with the conclusion of the contract on July 2, 1948 and would have expired on July 2, 1958.
However, the court considered the defendant's raising of the plea of limitation to be an abuse of rights within the meaning of Art. 2 para. 2 CC. The defendant had behaved for more than 10 years as if his son had actually become the owner and…