Facts

The appellant (applicant, plaintiff) concluded a purchase right agreement on 11 February 2017 with the defendant, by which a time-limited, transferable and heritable purchase right over the agricultural holding [U.] (plots in the land register of [V.] ) was granted to him. The purchase right was noted in the land register on 14 February 2017.

In a first set of proceedings, the appellant challenged the contract for exploitation and mistake. The District Court of Willisau dismissed the action on 16 August 2019, the Cantonal Court of Lucerne dismissed the appeal on 26 March 2020, and the Federal Supreme Court dismissed the civil law appeal in judgment 4A_254/2020 of 22 July 2020, insofar as it was admissible.

On 21 July 2020 the defendant declared the exercise of the purchase right. By letter of 3 August 2020 the appellant revoked the gift promise concerning the property as well as the gift of the live and dead inventory.

On 1 February 2021 the appellant filed an action with the District Court of Willisau for a declaration of gift revocation, correction of the land register, surrender of the inventory, damages of at least CHF 22'127.60, and an order to keep the defendant away under threat of penalty under Art. 292 SCC, and applied for legal aid with appointment of counsel.

The presiding judge of the District Court dismissed the application on 11 February 2021 on the ground that the main action was futile. The Cantonal Court of Lucerne dismissed the appeal on 3 May 2021, insofar as it was admissible, refused legal aid for the appeal proceedings and imposed the costs of both proceedings on the appellant.

By civil law appeal of 7 June 2021, the appellant requested that the cantonal decision be set aside and that legal aid be granted retroactively from 1 February 2021, as well as for the cantonal appeal proceedings and the federal proceedings. The appeal was granted suspensive effect by presidential order of 15 July 2021. No responses were requested.

The question in dispute was whether the lower court was correct, in its summary assessment of prospects of success, to refuse legal aid on the ground that the main action was futile.

Considerations

The civil law appeal against the decision on legal aid is admissible as an independently reviewable interlocutory decision under Art. 93 para. 1 lit. a FSCA, since such decisions generally cause an irreparable disadvantage. The main action (gift revocation and correction of the land register) is a civil matter of a pecuniary nature, whose amount in dispute exceeds CHF 30'000.-- (Art. 72 para. 1, Art. 74 para. 1 lit. b FSCA). The appeal is therefore admissible. The Federal Supreme Court examines the establishment of facts only for arbitrariness and under the strict principle of complaint (Art. 105 para. 2, Art. 106 para. 2 FSCA).

Under Art. 29 para. 3 Cst. and Art. 117 et seq. CPC, there is an entitlement to legal aid if the request does not appear futile. Requests are futile where the prospects of success are considerably lower than the risk of loss. The determinative test is a preliminary, summary examination at the time the application was filed.

The appellant based the gift revocation on Art. 250 para. 1 no. 1 in conjunction with Art. 249 no. 3 CO (unjustified non-performance of conditions) as well as on Art. 250 para. 1 no. 2 CO (material deterioration of the donor's financial circumstances). The revocation must be made within one year of knowledge of the ground for revocation (Art. 251 para. 1 CO).

The Federal Supreme Court held that the gift had already been executed (noting of the purchase right in the land register and performance of the inventory purchase), so that the appellant was restricted to the grounds for revocation under Art. 249 CO. The ground of deterioration in financial circumstances would in any event have arisen immediately after the grant of the purchase right and could have been asserted in the first proceedings; procedural barriers could not be circumvented by a second action (judgment 4A_449/2020 consid. 3). The…