Rejection of the registration in the land register of a lifelong maintenance contract

Facts

By a notarized contract dated 12 April 1978, Candid B. sold his agricultural estate to his son Walter Wilhelm B., the latter undertaking in particular to provide his parents with housing, food and care. The contract was qualified as a lifelong maintenance contract within the meaning of Art. 521 CO. During the registration procedure in the land register, the land registry office of Sursee rejected the registration on the grounds that the contract was not properly authenticated. The justice commission of the cantonal high court of Lucerne confirmed this rejection. The parties then appealed to the Federal Tribunal.

Considerations

The Federal Tribunal considers that the lifelong maintenance contract is subject to the same formal requirements as the testamentary contract provided for in Art. 522 para. 1 CO, namely the solemn form of the disposition for cause of death (Art. 512 CC). This in particular implies that the parties must sign the contract in the presence of witnesses (Art. 512 para. 2 CC).

In the present case, the witnesses did not confirm that the parties signed the contract in their presence. Moreover, the attestation of the witnesses only mentions the declaration of the beneficiaries of…