Facts
The case concerns a simple partnership composed of two natural persons, Th. H.-V. and M. H., who were co-owners of a property, the Grundstück J., registered in the land register under the number 1107. On 9 May 1991, Th. H.-V. died. Notary L. W. then filed a declaration of succession with the land register, in which he stated that the simple partnership had been dissolved due to the death of Th. H.-V. and that the property had become the exclusive property of M. H.
The land register refused to register this declaration, considering that it did not constitute sufficient proof of ownership. The decision was confirmed by the justice department of the canton of Berne and by the administrative court of the canton of Berne. L. W. then filed an appeal with the Federal Court.
Considerations
The Federal Court examined the question of whether, in the event of the death of a partner in a simple partnership, the jointly owned property of the two partners becomes the exclusive property of the surviving partner. The Federal Court recalled that, according to Article 545 paragraph 1 number 2 of the Code of Obligations (CO), the simple partnership is dissolved when one of the partners dies, unless the partners have agreed to continue the partnership with the heirs.
The Federal Court also recalled that, according to Article 560 of the Civil Code (CC), the heirs acquire ownership of the property by law, but that this acquisition does not mean that the property becomes the exclusive property of the surviving partner. The Federal Court considered that the liquidation of the simple partnership after the death of a partner implies…