Facts
Karl Näf operates a market gardening business in Goldach (SG) with an annual turnover of approximately CHF 250,000. In 1969, the cultivated area was approximately 4 hectares, of which 2.8 hectares were owned. The business includes two residential houses, a barn with an annex and boiler room, an open shed and storage rooms, twelve greenhouses and a cold room. In 1968, Näf employed 16 people. He does not operate a retail business, but delivers his products to approximately 25 major customers, mainly market stall holders and shops. One of his main customers is Migros. In 1967/68, Näf invoiced up to 30 deliveries per month to his customers. Näf's accounting is handled by the Cooperative for Surety and Fiduciary of Eastern Switzerland (OBTG), to which he submits his monthly revenue and expense statements, etc.Considerations
According to the case law of the Federal Supreme Court, primary production enterprises, in particular those in agriculture, are subject to the obligation to register in the commercial register when they are linked to a wholesale trade in the products obtained or are managed in a commercial manner within the meaning of Art. 53 let. c CO. However, the Federal Supreme Court has excluded agricultural holdings from this obligation, considering that the applicability of commercial law does not make sense for them.
In the present case, Näf's market gardening business must be assimilated to an agricultural holding rather than to a commercially managed enterprise within the meaning of Art. 53 let. c CO. Although the business uses special technical installations, such as greenhouses, a boiler room and a cold room, this is not sufficient to qualify it as a commercial enterprise, as agricultural holdings are also…