Facts
On 30 January 1996, [E.] sold three properties in [G.] to his son [B.] . The parties agreed on a limited right of pre-emption in favour of [E.] , which was recorded in the land register. [E.] passed away on 18 April 2003, and his legal heirs are his son [B.] and his daughter [K.] .
On 19 September 2003, [B.] sold one of the properties (Land Registry xxxx) to [D.] . On 18 December 2003, [K.] declared to [B.] the exercise of the right of pre-emption. Disputes arose between the siblings as to whether [K.] could exercise the right of pre-emption alone and whether she could settle the purchase price by offsetting it against inheritance claims.
[K.] sued [B.] and [D.] for the transfer of ownership of Land Registry xxxx. The Cantonal Court of Schwyz ordered the defendants to transfer the ownership of Land Registry xxxx to [K.] as soon as she has reimbursed the purchase price of 1.5 million Swiss francs to [D.] .
Considerations
The Federal Supreme Court held that the limited right of pre-emption agreed on 30 January 1996 was validly established. The purchase price was determinable, as it was based on the book values underlying the contract.
Furthermore, the Federal Supreme Court decided that [K.] , as a co-heir, was solely entitled to exercise the right of pre-emption, as her brother [B.] had tacitly waived it. The exercise of the right of pre-emption by [K.] was therefore legally valid.
However, the Federal Supreme Court found that [K.] cannot settle the purchase price by offsetting it against inheritance claims against…