Facts
In this case, Rosina Bortolotti had granted a right of pre-emption on certain of her real estate properties to the brothers Eros and Luigi Chiesa. After the death of Mrs. Bortolotti, the hereditary community sold a portion of the properties to Walter Robbiani. Only Eros Chiesa exercised his right of pre-emption, Luigi having not reacted. The central issue was whether Eros Chiesa could validly exercise the right of pre-emption for the entire property, despite the absence of a reaction from his brother.Considerations
1. The Federal Tribunal first considered that the notification of the sale made by the sellers to the two beneficiaries of the right of pre-emption was valid only for the one who had actually received it, in this case Luigi Chiesa. As Eros Chiesa had not been informed within the time limits, his exercise of the right of pre-emption on 18 June 1964 was therefore considered timely. 2. Regarding the exercise of the right of pre-emption by only one of the beneficiaries, the Federal Tribunal held that the right of pre-emption granted jointly to two persons could only be exercised in its entirety, regardless of the divisibility of the encumbered property. Therefore, in the absence of a contrary stipulation, the non-exercise of the right by one of the beneficiaries benefits the other, in accordance with the principle of accretion. Eros Chiesa was therefore entitled to exercise the right of pre-emption on the entire property. 3. The Federal Tribunal then considered that, since the property had been registered in the…