Adaptation of a Superficies Contract Following a Change in Circumstances

Facts

In 1964, a project to construct a satellite town "Jolieville" was launched in the municipality of Adliswil. In 1971, A. concluded a 100-year superficies contract with the Migros-Genossenschafts-Bund for the realization of this project. However, in 1985, the municipality of Adliswil withdrew the partial construction plan and classified the land as a reserve zone. The Migros-Genossenschafts-Bund then considered that the superficies contract had lost its basis and ceased to pay the superficies fee. A. then filed a lawsuit to obtain payment of the unpaid rents.

Considerations

The Federal Court ruled that the principle of "clausula rebus sic stantibus" could apply to purely contractual obligations arising from a right of superficies, even if it has been registered in the land register and is assimilated to an immovable property. When unforeseeable and unavoidable circumstances lead to a serious imbalance between the performances, the judge can adapt the contract in accordance with the hypothetical will of the parties.

In this case, the Court considered that the classification of the land as a reserve zone, which was not foreseeable at the time of the conclusion of the contract, had led to a serious alteration of the equivalence of the performances. Consequently, the conditions for a judicial…